author: LARRY G. SMITH, Judge.

text:
    Kenneth F. CASSEL and Shirley Ann Cassel, Personal Representatives of Kenneth Reagan Cassel, Deceased, Appellants, v. J. Frank PRICE, Fred D. Higginbotham, and Fred Crews, their successors and assigns, as Trustee for First United Pentecostal Church, also known as Jacksonville Christian Academy and Preferred Risk Mutual Insurance Company, Appellees.
    No. XX-15.
    District Court of Appeal of Florida, First District.
    April 7, 1981.

      David R. Lewis, of Lewis, Paul, Isaac & Castillo, and Mary L. Nelson, of Penland, McCranie & Shad, Jacksonville, for appellants.
    William R. Swain and William T. Stone, of Webb, Swain & Watson, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

Appellants appeal a final summary judgment finding no liability in their suit seeking damages for the death of their eleven year old son, who died as a result of a fall from a mulberry tree on the grounds of appellees’ private church school, at which the child was a student. Appellants contend that the trial court erred in rejecting their claim of liability based upon the attractive nuisance doctrine, as well as upon ordinary negligence principles arising from the relationship between the school and the deceased child as a “business invitee”; and they further contend that although their second amended complaint was couched in terms broad enough to sustain their claim based upon the “business invitee” theory, the trial court further committed error in denying their motion to file an amended complaint, containing a second count based upon the school-student relationship. Our conclusion, from examination of the pleadings and record, and consideration of the briefs of the parties, is that there is no view of the facts affording a reasonable conclusion of negligence on the part of the defendant, and the summary judgment finding no liability, must therefore be affirmed.

The facts of the case, as stated by appellants, are fairly simple and mostly undisputed. The decedent was an eleven year old student enrolled at the private school. He was in a car pool with two other students and was to be picked up at the end of the school day by the mother of the other two children. On the fatal day, at the close of the school day, that mother arrived to pick up the three boys, when it was learned that one of the other children was being kept after school for a short period by his teacher, apparently for disciplinary reasons. The driving mother decided to run a shopping errand, and at the request of the decedent and the other child, left them at the school grounds to play. After her departure, the two boys crossed the road or drive-way separating the school building from other school grounds, and the decedent climbed a large mulberry tree on the school property, near the area used by the school for parking and school recreation. While in the tree, the deceased child was picking mulberry blooms and throwing them to his companion on the ground, when he apparently lost his balance and fell to the ground. Upon falling, according to allegations of the complaint and a supporting affidavit filed in opposition to the motion for summary judgment, the deceased child struck his head on a b-oken piece of concrete block which, along with other old and broken pieces of brick and block left over from the school’s building program, had been used by the school to fill in depressions around the tree. This filled area was covered over with a thin covering of dirt which originally hid all of the broken brick and block, but may have, by the passage of time, become thinned out further. The injuries received by the child when it struck the debris proved to be fatal.

The first complaint consisted of two counts: The first count was founded upon attractive nuisance, and lack of supervision by the school; and the second count was founded upon the alleged failure of the defendant to maintain the premises in a safe condition, and failure to warn the deceased minor of the dangerous, unsafe conditions created by the condition of the ground underneath the tree. Upon motion, this complaint was dismissed and an amended complaint was filed. This complaint contained one count alleging negligence based upon the duty of the school to provide a safe place to play; a second count founded upon negligent supervision; and a third count alleging the existence of an insurance contract of which the deceased child was a beneficiary. A motion to dismiss this complaint was also granted. Finally, a second amended complaint was filed. This complaint contained only one count, based upon the “attractive nuisance” theory, alleging in substance that the mulberry tree was an attractive nuisance, and that the partially covered pieces of brick or concrete lying beneath the tree constituted a latent danger or hidden trap, as a consequence of which the child received his fatal injuries.

The motion to dismiss this second amended complaint was denied, and trial was scheduled for the week of May 12, 1980. On March 28, 1980 defendants filed a motion for summary judgment in which it was contended, among other things, that although the debris beneath the tree had been covered with sand, it was nevertheless open and visible; that there was no trap or hidden danger upon the premises, and thus no basis for recovery on the attractive nuisance doctrine; and that the defendants were entitled to summary judgment as a matter of law. On April 15, 1980, prior to ruling on defendants’ motion for summary judgment, appellants filed a motion to further amend their complaint, seeking to add a count alleging negligence on the part of the school based upon its duty toward the deceased student as a business invitee. The trial judge entered a final summary judgment, founding his decision upon a determination that a tree is not an attractive nuisance, and that no cause of action on that theory could be supported based upon the undisputed facts. He further ruled that by filing the second amended complaint the plaintiffs appeared to have abandoned their count or claim based upon the business invitee relationship, and that in view of the lateness of the request for amendment, it should be denied.

Appellants obviously seek to draw inferences and conclusions from the undisputed facts in such a way as to support their contention that a jury issue is presented. However, there is no actual disputed fact in this case, with the sole exception of the extent to which the broken pieces of brick or concrete block were exposed and visible, if at all, through the thin covering of sand. For reasons which we will discuss, we find that this did not present a “genuine issue of material fact” precluding entry of a summary judgment for defendants.

We begin our discussion with the observation that issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, but these issues become questions of law if the facts point to but one possible conclusion. See 23 Fla. Jur., Negligence, §§ 129, 133; Loftin v. McGregor, 152 Fla. 813, 14 So.2d 574 (1943); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2nd DCA 1959), cert. dismd., 117 So.2d 731 (Fla. 1960); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla. 1977); Seaboard Coast Line Railroad Company v. Griffis, 381 So.2d 1063 (Fla. 1st DCA 1979).

Unfortunately, these often-repeated maxims offer little guidance for decision in the difficult cases, and this is particularly so when, as here, the ruling of the court has the effect of adjudicating the rights of those seeking redress for the tragic death of an innocent child. However, so long as our system of laws recognizes a dividing line between conduct which may properly require a party to be subjected to the burden of trial and the risk of an adverse jury verdict for damages, and conduct which will not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line. Russell v. Jacksonville Gas Corporation, 117 So.2d 29 (Fla. 1st DCA 1960).

Despite the difficulties, and added complexities brought about by the adoption of the comparative negligence rule, the trial and appellate courts of Florida continue to find cases requiring a court determination of no liability. Furthermore, it is evident that a court may determine as a matter of law “that reasonable men could not differ,” without the appellate judges themselves in a given case agreeing unanimously, and such a determination may also be made even in the face of a contrary decision by a jury composed, ostensibly, of “reasonable men.”

Summary judgment, although sparingly used in negligence cases, is nevertheless a proper and necessary means for accomplishing the purpose of terminating litigation short of a jury trial, which satisfies the constitutional “right of access” to the courts as a means of resolving civil disputes.

There is much discussion of the “attractive nuisance” doctrine in the briefs and we are required to rule on that asserted theory of liability. The trial judge’s discussion of the law (as above indicated) is confined solely to that theory of liability. Appellants urge however, that their second amended complaint (admittedly couched in attractive nuisance terms) contains allegation of fact sufficient to require consideration under other theories of liability, and we agree. Therefore, notwithstanding the trial judge’s ruling that appellants “abandoned” their claim based upon negligent breach of defendant’s duties to the minor child as a “business invitee,” to have the play and recreation areas of the school grounds in a reasonably safe condition, we have considered the arguments presented by appellants on that ground also.

Since we have determined that the trial court’s ultimate disposition of the case was correct, we affirm, even though we base our decision in part on reasons not stated in the judgment. 3 Fla.Jur.2d, Appellate Review, § 296.

The attractive nuisance theory is clearly inapplicable, and we concur with the trial judge’s ruling on this point. No decision from the Florida courts, nor from any other jurisdiction (so far as has been made to appear to us) has held a tree to be an attractive nuisance under circumstances similar to those appearing here. See Annotation, 59 A.L.R.3d 848, “Trees or Shrubs As Attractive Nuisance,” reviewing a number of cases in which it has been generally held that trees, shrubs, or the like, when considered alone or in combination with other circumstances, (with exception of electrical wires running through the trees) cannot be the basis for imposition of liability based upon the attractive nuisance doctrine.

The dismissal of a complaint was affirmed in an Alabama case involving facts somewhat similar to those presented here, Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). In that case it was alleged that children played in and around the tree, and climbed the tree, with the knowledge and permission of the defendant, and that while climbing the tree, a dead limb broke, causing the plaintiff to fall on a portion of the debris, planks or boards lying beneath the tree, resulting in his injuries. The Alabama court held that natural objects such as a tree, are not regarded as constituting an attractive nuisance; and the court refused to extend the doctrine because of the addition of debris, a dog house, some scraps of lumber, planks or boards in and around and under the tree.

The annotation (59 A.L.R.3d 848) contains no case in which liability was found other than those involving electric wires running through the tree, as in Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323 (1925). Gf. Johns v. Clay Electrical Co-Op Assn., Inc., 50 So.2d 710 (Fla. 1951). In Stark v. Holtzclaw, supra, a child was severely burned from coming into contact with bare electrical wires passing through the branches of a magnolia tree into which the child had climbed. There is no similarity to be found in the facts of that case, and the present one, except that a mulberry tree, like a magnolia tree, can be considered an attraction to active children. However, there is lacking in this case the element of a “hidden danger,” or “trap,” without which the attractive nuisance doctrine does not apply. See Edwards v. Maulé Industries Inc., 147 So.2d 5 (Fla. 3rd DCA 1962), holding that piles of sand, which toppled and fell upon a child, causing his death, did not constitute an attractive nuisance.

In McDaniel v. Mendez, 198 So.2d 75 (Fla. 3rd DCA 1967), where a child fell from a couch striking her head on a concrete floor, the court held that the couch was not “inherently dangerous nor a trap,” nor was it maintained in such a manner as to create a dangerous condition, and did not constitute an attractive nuisance. In Jackson v. Whit-mire Construction Company, 202 So.2d 861 (Fla. 2nd DCA 1967), it was held that a pile of sand, rock, and broken asphalt, upon which a child was injured when a piece of shell and tar became dislodged, and fell on him, did not constitute an attractive nuisance. A condition cannot be deemed to involve an unreasonable risk of death or serious bodily harm the court said, “unless it inherently presents a hidden and unusual element of danger in such a way as to constitute a trap for them.” (Id. at 863)

In Kwoka v. Campbell, 296 So.2d 629 (Fla. 3rd DCA 1974), the court determined that a summary judgment in favor of the defendant was correctly entered by the trial court. In Kwoka, a tree in front of the defendant’s home contained a tree house, with a rope hanging from the limb of the tree which had been put there by the defendant prior to the accident. Shortly before the accident, unknown to the defendant, children had attached an automobile tire to the end of . the rope, which they sat in as a swing, using a bicycle innertube attached to the tire as a back rest. As the minor plaintiff swung outward on the tire, the innertube broke, causing him to fall backwards and upon a paved driveway which was directly under him at the point where he fell. In affirming the summary judgment, the appellate court found that there was no “reasonable inference” that the defendant, by allowing the rope to hang from the tree in such a position that it might be made into a swing which would have an arc partly over a paved area, violated a duty of reasonable care to the neighborhood child.

Without extending discussion of the attractive nuisance cases further, we think it is sufficient to note that with exception of the case of Stark v. Holtzclaw, supra, appellants have cited to us no case finding liability based upon a child’s climbing of a tree. The element of an inherently dangerous factor, such as the deadly force of electricity in Stark, is totally absent in this case. The danger of falling from the tree was not a condition created by appellees here, and the attractive nuisance doctrine does not protect one against his own clear fault. Sparks v. Castleberry Gardens, Inc., 227 So.2d 686 (Fla. 4th DCA 1969).

As previously noted, appellants urge that their case does not rest solely upon the attractive nuisance doctrine, although they do not concede the nonexistence of liability on that theory. They assert, and we think correctly, that the attractive nuisance theory is a legal fiction invoked for the purpose of transforming a trespassing child to the status of an invitee, thereby enabling the child to recover for injuries caused by ordinary negligence. It has been suggested by this court in at least one case that if the child already occupies the status of invitee, there is no necessity to invoke the doctrine. Crutchfield v. Adams, 152 So.2d 808, 810 (Fla. 1st DCA 1968); and see Concrete Construction Inc. of Lake Worth v. Peterson, 216 So.2d 221 (Fla. 1968). We concede that it would be improper to judge defendants’ liability in this case solely on attractive nuisance concepts. Note that Kwoka v. Campbell, supra, was not an attractive nuisance case. However, to the extent that appellants’ cause of action depends upon the existence of an unreasonably dangerous hidden or latent condition, Kwoka and the attractive nuisance cases reviewed nevertheless tend to support our conclusion that the defendant was not guilty of negligence under the facts presented here.

The two basic duties owed by a landowner to invitees have been recently reiterated in Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), quoting from Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 970 (Fla. 1977), as follows:

In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.

It is still fundamental, of course, that the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone. Robinson v. Allstate Insurance Company, 367 So.2d 708 (Fla. 3rd DCA 1979); Marcano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA 1978); Lash v. Nolan, 321 So.2d 104 (Fla. 4th DCA 1975); and City Cab of Orlando Inc. v. Green, 308 So.2d 540 (Fla. 4th DCA 1975).

Liability is imposed upon the landowner only if natural or artificial conditions involve an “unreasonable risk.” Gifford v. Galaxie of Homes of Tampa, Inc., 194 So.2d 25 (Fla. 2nd DCA 1967), cert. dis. 204 So.2d 1 (Fla. 1967); Grail v. Risden, 167 So.2d 610 (Fla. 2nd DCA 1964); Crutchfield v. Adams, supra. If no reasonable duty has been abrogated, no negligence can be found. Rice v. Florida Power and Light Co., 363 So.2d 834 (Fla. 3rd DCA 1978). A person is not required to take measures to avoid a danger which the circumstances as known to him do not suggest as likely to happen. Sprick v. North Shore Hospital, 121 So.2d 682 (Fla. 3rd DCA 1960).

No contention is made, nor could it reasonably be argued, that the condition of the ground under the tree, upon which the child fell, posed any inherent danger, or created any unusual condition not ordinarily found under trees in their natural state. Hard-packed earth, rocks, and projecting or sparsely buried roots from the tree itself abound in nature. It is also a fact of life that innumerable objects are commonly found under trees. Fixed objects such as flower gardens with brick borders, rock gardens, curbs, driveways, sidewalks, fences, benches, and, particularly in play areas, moveable objects such as lunch boxes, roller skates, baseball bats and bicycles. The consequences of a fall of sufficient height from any tree, particularly if a vital part of the body such as the head strikes the ground, can be disastrous, as in the present case, without negligence or fault of any kind on the part of any other person. To impose upon the landowner the duty to anticipate and guard against the consequences of a falling child striking a hard ground surface, or some hard object on the surface of the ground, particularly in the absence of actual notice or knowledge of injuries produced by the same circumstances on the owner’s premises in the past, would impose an unreasonable and prohibitively burdensome duty upon the owner which we find no justification in the law to impose. “Perfection of conduct is humanly impossible, and the law does not exact an unreasonable amount of care from anyone. The degree of care required is ordinary and reasonable care.” 23 Fla.Jur., Negligence, § 19.

The duty of a person to use care, and his consequent liability for negligence, depends upon the tendency of his acts to cause harm to another under the circumstances as they are known, or should be known by him. 23 FlaJur., Negligence, § 17; Firestone Tire & Rubber Co. Inc. v. Lippincott, supra; Stanage v. Bilbo, supra; Melton v. Estes, supra; Vermont Mutual Insurance Company v. Conway, supra, footnote 3. As one court has expressed it “foresight of harm lies at the foundation of duty to use care and therefore of negligence.” Memorial Park Inc. v. Spinelli, 342 So.2d 829 (Fla. 2nd DCA 1977). Although “foreseeability” as related to the question of proximate cause is to be distinguished from foreseeability as a determining factor of whether a duty exists, 23 Fla.Jur., Negligence, § 29 we find here, both from the standpoint of duty and proximate cause, that the actions of the defendant here are insufficient to impose liability for the fatal injury.

In Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla. 1980), the issue was “foreseeability” in relation to proximate cause. The Gibson case arose from a multiple-car collision on an interstate highway. In sorting out the issue of the scope of the risk assumed by the driver of the first ear, who was presumably negligent, the court spelled out three categories of “harm” which may be examined to determine liability (Id. at 522):

First, the legislature may specify the type of harm for which a tortfeasor is liable.... Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct. .. . Finally, there is the type of harm that has so frequently resulted from the same type of negligence that “ ‘in the field of human experience’ the same type of result may be expected again.” (citations omitted)

Applying these tests here, we find (1) no legislation; (2) no allegation that any other child had received injuries from a fall to the ground beneath the mulberry tree, and (3) no basis for the contention that the same type of harm has so frequently resulted from the same type of negligence that “in the field of human experience” the same type of result may be expected again. As to this third category, we observe simply that trees and tree-climbers have been with us for many centuries, but appellants have not brought to our attention any case in which liability for injuries received in an accidental fall from a tree to the ground has been predicated upon the lack of “fall-worthiness” of the ground surface. We further observe that there are no technological, social or economic changes that would suggest the necessity for a reappraisal of established negligence law or its application to the circumstances presented here.

In finding no liability as a matter of law the court in Rice v. Florida Power and Light Co., supra, clearly focused on foreseeability as a factor in determining the existence of a duty on the part of the power company. The facts in Rice were that the plaintiff’s decedent was electrocuted when a control line model airplane he was flying came into contact with a highly charged overhead electrical wire. One of the issues urged by the plaintiff was that a change in use of the field where the accident occurred, from expanded residential growth to primarily recreational use, created a genuine issue as to the duty to relocate or insulate the wires, or provide a warning concerning the hazard. There the court said (Id. at 839):

Had a clear view of the exposed lines not existed, or had FPL had actual notice that individuals were flying model airplanes attached to electrical conductors, the changed use of the underlying property might have been sufficiently persuasive to leave the questions of the existence of a duty and a breach of that duty for the resolution of a jury.

The analysis by the court in Rice, as in Gibson, takes into account the absence of actual knowledge by the defendant of the specific danger that resulted in the injury, as one of the elements determining liability, or absence of liability. Similarly, we note the absence of actual knowledge of any similar accident in the case now before us. See also Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3rd DCA 1980).

As for the matter of causation, we think it would be mere speculation to assume that the covered or partially covered pieces of broken brick or concrete block had any bearing upon the child’s decision to climb the tree. Before a jury would be permitted to find that defendant’s conduct contributed to the child’s death there would have to be facts which would afford a reasonable basis for a conclusion that it is “more likely than not” that the conduct of defendant was “a substantial factor in bringing about that result.” See Greene v. Flewelling, 366 So.2d 777 (Fla. 2nd DCA 1978), quoting from Prosser, The Law of Torts, 241 (4th Ed. 1971). The quotation continues (opinion page 781):

A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

See also Greenhouse Inc. v. Thiermann, 288 So.2d 566 (Fla. 2nd DCA 1974). There must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred. Fellows v. Citizens Federal Savings & Loan Assn., 383 So.2d 1140 (Fla. 4th DCA 1980). We think it was just as likely as not, under the circumstances of this case, that a child’s decision to climb the tree would have been the same had the pieces of broken brick or block been clearly visible. In any event, liability cannot be predicated, under the circumstances presented here, upon the mere possibility that a climbing child might assume, incorrectly, that the ground surface would cushion his fall from the tree. Although it might well be that the injuries to the child were exacerbated by hitting a piece of concrete block, it cannot reasonably be found on an “after the fact” basis that the partially covered debris “caused” the injury. Since the only possible factual issue was the extent to which the pieces of concrete were partially covered with sand and thus hidden from view, the trial judge properly granted the motion for summary judgment.

The judgment is affirmed.

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

      . We have recited the facts substantially as they are stated in appellant Shirley Ann Cas-sel’s brief. See footnote 8, infra, for further description of the accident site as it evolved in the pleadings filed by appellants.

      . Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). See particularly specially concurring opinions of Judge Ervin in Mansur v. Eubanks, 368 So.2d 645 (Fla. 1st DCA 1979), and Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980), and dissenting opinion in Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979). Compare with Zambito v. Southland Recreation Enterprises, 383 So.2d 989 (Fla. 2nd DCA 1980).

      . Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3rd DCA 1980), (summary judgment affirmed, no foreseeability); Phillips v. Styers, 388 So.2d 221 (Fla. 2nd DCA 1980), (recovery barred, plaintiffs negligence sole cause of accident); Firestone Tire & Rubber Co. Inc. v. Lip-pincott, 383 So.2d 1181 (Fla. 4th DCA 1980), (jury verdict for plaintiff reversed, injury not foreseeable); Fellows v. Citizens Federal Savings & Loan Assn., 383 So.2d 1140 (Fla. 4th DCA 1980), (summary judgment for defendant affirmed, negligent design of driveway not legal cause of accident); Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980), (summary judgment for defendant affirmed, sale of beer to teenager, injury to another from accidental shotgun discharge, not actionable negligence); Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979), (summary judgment for defendant affirmed, no foreseeability); Gaidymowizc v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla. 3rd DCA 1979), (directed verdict for defendant affirmed, no knowledge of dangerous condition); Alves v. Adler Built Industries, 366 So.2d 802 (Fla. 3rd DCA 1979), (summary judgment for defendant affirmed, two year old child drowned playing in sand pile next to lake, neglect of parents sole proximate cause); Mansur v. Eubanks, 368 So.2d 645 (Fla. 1st DCA 1979), (summary judgment for defendant affirmed, landlord not liable to tenant in possession for gas explosion in apartment); Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978), (jury verdict for plaintiff reversed, no foreseeability of creating a dangerous condition.)
      Of course, during the same period covered by the foregoing cases, the appellate courts have had occasions to disapprove of court determinations on negligence issues, for example: Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla. 1980), (directed verdict for defendant reversed); Jackson v. Williams, 385 So.2d 190 (Fla. 5th DCA 1980), (summary judgment for defendant reversed); Zambito v. Southland Recreation Enterprises, 383 So.2d 989 (Fla. 2nd DCA 1980), (dismissal of complaint reversed); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980), (directed verdict for defendant reversed); Squitieri v. Aetna Casualty & Surety Company, 382 So.2d 730 (Fla. 5th DCA 1980), (summary judgment for defendant reversed); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), (directed verdict for defendant reversed); Eachus v. Big Daddy’s Lounges, Inc., 380 So.2d 1154 (Fla. 3rd DCA 1980); Phillips v. Hartford Casualty Insurance Company, 373 So.2d 415 (Fla. 4th DCA 1979), (summary judgment for defendant reversed).

      . See dissents in Jenkins v. City of Miami Beach, Melton v. Estes, Alves v. Adler Built Industries, supra, footnote 3. See reversal of jury verdicts, Firestone Tire & Rubber v. Lip-pincott, Vermont Mutual v. Conway, supra, footnote 3.

      . Harris v. City of Neptune Beach, 214 So.2d 25 (Fla. 1st DCA 1968), citing Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5th DCA 1980). See, however, the lament of Judge Letts, dissenting in Phillips v. Hartford Casualty Insurance Company, 373 So.2d 415 (Fla. 4th DCA 1979): “The majority opinion typifies the reason why trial judges so often admit that they will never grant summary judgments even though they are so inclined, simply because the appellate courts invariably reverse them.” (Id. at 416).

      . However, the constitutional right of jury trial demands that particular care be exercised in the granting of summary judgments. Gartner v. Atlantic National Bank of Jacksonville, 350 So.2d 495 (Fla. 1st DCA 1977).

      . The complaint alleges that the decedent was a “fee-paying student” at the school; that the decedent was an invitee, having just completed his classes and was awaiting his car pool to take him home; that the defendants negligently maintained the grounds surrounding the mulberry tree on the school grounds in that they had “filled the area around the tree with broken concrete blocks and bricks and covered over those blocks and bricks with a thin layer of dirt, constituting a latent and hidden danger or trap ... that defendants knew or should have known that “young children would be attracted to climb the tree to gather the fruit,” and, “due to their youth and inexperience and the thin layer of dirt covering the blocks and bricks” would not “realize the danger lying below the tree when they dropped or fell from, the tree.” Further, that “as a result of defendants’ said negligence, the decedent struck his head on a concrete block or brick just below the dirt surface under the tree and received mortal injuries from which he shortly died.” We note that the original complaint, which was dismissed by the court, particularly identified the area of the accident as in the “parking lot area,” and that the parking lot area “was constructed by defendants and was a dirt covered driveway filled with cement blocks, bricks and other debris encircling several large mulberry trees.” The first amended complaint, dismissed by the court, also identified the site as the “parking lot area,” and that the dangerous condition consisted of “surrounding” one of the mulberry trees with cement blocks and bricks, thinly covered with dirt. The second amended complaint was less specific than either the original or amended complaint as to the exact site of the accident. However, it is clear that the school-student relationship and the duty to use care commensurate with that relationship were clearly alleged in all versions of the complaint. In reviewing the second amended complaint in this light, therefore we are not passing upon any question not already ruled upon by the trial judge.

      .Our determination that the second amended complaint fails to state a cause of action under either theory obviates the necessity of a ruling on whether the trial judge abused his discretion in refusing to allow the belated filing of a third amended complaint adding a count on the “school invitee” theory. See and compare allegations of original and first amended complaints, and comments on court’s ruling, footnote 7, supra.

      . Compare “crashworthiness” doctrine, Ford Motor Company v. Evancho, 327 So.2d 201 (Fla. 1976).

      . “ ‘Probable cause’ is not ‘possible cause.’ ‘Foreseeable’ is not ‘what might possibly occur.’ ” Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977); State, Agcy. of Stephen Boyles v. Simer, 363 So.2d 357 (Fla.App.); . Stanage v. Bilbo, supra, footnote 3; Firestone Tire & Rubber Co. Inc. v. Lippincott, supra, footnote 3.

      . Our decision obviously may not be construed as condoning the creation of an inherently dangerous condition or “trap” for tree-climbing children.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel VELA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1860.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Bennett H. Brummer, Public Defender and (Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse appellant’s second-degree murder conviction on the ground that both the pattern and content of the prosecutor’s questioning, as well as portions of her closing argument, impermissibly prejudiced appellant’s right to a fair trial. Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980); Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Porter v. State, 347 So.2d 449 (Fla. 3d DCA 1977), after remand, 386 So.2d 1209 (Fla. 3d DCA 1980). Our ruling makes it unnecessary to consider the other grounds for reversal raised by appellant.

Reversed and remanded for new trial.


author: BASKIN, Judge.

text:
    Herbert Charles WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-2478, 78-2295.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.

      Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Herbert Williams, convicted of aggravated battery in connection with an unprovoked stabbing, challenges the trial court’s failure to conduct a mid-trial hearing regarding his competence to stand trial after his attorney advised the court of his refusal to testify concerning the issue of self-defense despite his previous willingness to testify. After the state rested, defense counsel requested a psychiatric evaluation, but the court denied his motion. When the defendant interrupted the trial demanding to be seen by a psychiatrist, the court threatened to have him bound and gagged if he continued his disruptive conduct. Upon the jury returning a verdict of guilty, the court ordered an evaluation. The psychiatric evaluation was conducted approximately four months after the trial. This court relinquished jurisdiction of the appeal from the conviction to permit defendant Williams to file a motion to vacate judgment and sentence. That motion was denied following an evidentiary hearing. The appeal of that denial has been consolidated with the appeal of defendant’s conviction. We affirm both the conviction and the denial of the motion to vacate.

Defendant urges this court to grant him a new trial. His arguments are predicated upon Dr. Jacobson’s evaluation. Defendant Williams has a long history of mental illness. He had been evaluated as incompetent by Dr. Jacobson in 1970 but was competent prior to trial. Although Dr. Jacobson believed defendant Williams was incompetent at the time of the post-trial examination, when questioned as to whether defendant Williams had been incompetent at the time of trial, he testified that “it was more likely than not, but not to any great degree more.” Dr. Jacobson explained:

Very frankly, I don’t think saying that he was more likely than not incompetent is a determination that he is incompetent.

The doctor testified that he could not state with certainty that defendant was incompetent at trial because defendant’s incompetence during the examination conducted several months after the trial could have been the result of his incarceration. Defendant’s trial counsel testified that he did not believe defendant Williams was incompetent prior to trial or during the presentation of the prosecution’s case. After the state rested, however, defendant advised his attorney that he was hearing voices and was insane. The court considered these circumstances at the hearing on defendant’s motion to vacate his conviction. The court ruled that since defendant Williams had begun the trial with a presumption of competence and since testimony had failed to disclose to a reasonable degree of psychiatric certainty that defendant was incompetent during trial, the grounds were insufficient to require the court to vacate the conviction. The court also observed that defendant’s condition could have deteriorated during his incarceration following trial.

A “more likely than not” probability is insufficient to establish that defendant is entitled to a new trial. No testimony appears in the record, either from defense counsel or anyone else, to indicate that defendant lacked sufficient “present ability to consult with his lawyer with a reasonable degree of rational understanding”, the burden which the accused must meet. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Brown v. State, 245 So.2d 68 (Fla.1971), modified on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Daniels v. O’Connor, 243 So.2d 144 (Fla.1971), appeal dismissed, Daniels v. Hirshberg, 406 U.S. 902, 92 S.Ct. 1611, 31 L.Ed.2d 813 (1972); Brock v. State, 69 So.2d 344 (Fla.1954); § 918.15(1), Fla. Stat. (1977); Fla.R.Crim.P. 3.210(a)(1).

Expert opinion on competence is not conclusive. United States v. Kossa, 562 F.2d 959 (5th Cir. 1977), cert, denied, 434 U.S. 1075, 98 S.Ct. 1265, 55 L.Ed.2d 781 (1978); United States v. Fortune, 513 F.2d 883 (5th Cir.), cert, denied, 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (1975); United States v. Collins, 491 F.2d 1050 (5th Cir.), cert, denied, 419 U.S. 857, 95 S.Ct. 104, 42 L.Ed.2d 90 (1974); United States v. Alvarez, 458 F.2d 1343 (5th Cir. 1972).

Defendant Williams contends that he was denied due process of law by the refusal of the trial court to interrupt the trial and order an immediate evaluation and competency hearing. A hearing on the issue of defendant’s ability to stand trial is obligatory if “reasonable doubt is raised as to defendant’s sanity.” Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Daniels v. O’Connor, supra; Tait v. State, 362 So.2d 292 (Fla. 4th DCA 1978). Before a competency hearing is required, evidence sufficient to raise a bona fide and reasonable doubt must be presented. A naked suggestion is insufficient. Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert, denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979); Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974).

We hold that the grounds presented to the trial court were insufficient to require the court to interrupt the trial and conduct an immediate hearing. After the verdict was returned, an evaluation was ordered by the court. Defendant has already been afforded a full hearing on the question of his competence at trial. No necessity for a new trial has been shown.

Affirmed.

      . Florida Rule of Criminal Procedure 3.210(b), effective July 1, 1980, requires the court to conduct a hearing if “before or during trial” reasonable ground to believe the defendant is not competent to stand trial exists. Rule 3.210(c) requires that a written motion filed by counsel contain a certificate of counsel that the motion is made in good faith and on reasonable grounds. The certificate requirement was not in effect at the time of defendant Williams’ trial.


text:
    Vincent GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-686.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.

      Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

We affirm the judgments of conviction. We reverse the fifteen-year term of imprisonment imposed as a condition of probation and remand for resentencing in accordance with Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980); see Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Rodriguez v. State, 390 So.2d 143 (Fla. 3d DCA 1980).

Affirmed in part; reversed in part and remanded.


text:
    L. L. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-983.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., and Michael A. Van-detty, Legal Intern, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Oyarzo, 274 So.2d 519 (Fla. 1973); Wimberly v. State, 393 So.2d 37 (Fla. 3d DCA 1981); State v. Holt, 354 So.2d 888 (Fla. 4th DCA 1978), cert. denied, 361 So.2d 832 (Fla.1978).


text:
    Walter Lee BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1346.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The defendant did not properly preserve his contention that the trial judge incorrectly failed to give a requested charge on penalties under Tascano v. State, 393 So.2d 540 (Fla.1980) because he did not, as required by Fla.R.Crim.P. 3.390(d), either make any objection to the refusal “before the jury retire[d]” or state “distinctly .. . the grounds of his objection” when it was belatedly made after the jury had already gone out. Bailey v. State, 393 So.2d 24 (Fla.3d DCA 1981); Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980); Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980).

The appellant’s other points likewise present no error. See, Lucas v. State, 376 So.2d 1149 (Fla.1979); Estevez v. State, 313 So.2d 692 (Fla.1975).

Affirmed.


text:
    James Randolph SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1580.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Bennett H. Brummer, Public Defender and Lance R. Stelzer, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The judgment of conviction is affirmed upon a holding that (1) any impropriety in two isolated comments made by the trial judge during the jury selection process was not preserved for appellate review by a proper and timely objection, motion for mistrial, or request for corrective instruction, Foreman v. State, 47 So.2d 308 (Fla.1958); Pegues v. State, 361 So.2d 433 (Fla.1st DCA 1978); Flynn v. State, 351 So.2d 377 (Fla.4th DCA 1977); McCrea v. State, 210 So.2d 724 (Fla.3d DCA 1968); see also Mack v. State, 270 So.2d 382 (Fla.3d DCA 1972), and the comments were not so pernicious as to cause us to recognize them as fundamental error; (2) the refusal of the trial court to give a specified, requested instruction is harmless when the instructions as a whole clearly and adequately enabled the jury to consider the theory of the defense, Creamer v. State, 205 So.2d 356 (Fla.2d DCA 1967); Darty v. State, 161 So.2d 864 (Fla.2d DCA 1964).

Affirmed.


author: SCHWARTZ, Judge.

text:
    Harrison PINDER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1888.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Bennett H. Brummer, Public Defender and Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The only point presented on this appeal from an aggravated assault conviction is the alleged insufficiency of the evidence to support the three-year minimum mandatory sentence required by Section 775.087(2) Fla.Stat. (1979) because the crime was committed with a “firearm.” The defendant contends that the only evidence on the issue — the victim’s testimony that the defendant was carrying what she described as a “handgun” or a “revolver-type of gun” —did not justify the determination that the instrument in question was in fact a “firearm,” as defined in Section 790.001(6) Fla. Stat. (1979) rather than a toy pistol. See, Miles v. State, 338 So.2d 547 (Fla.3d DCA 1976). We are unable to reach the merits of this question because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below. De La Cova v. State, 355 So.2d 1227 (Fla.3d DCA 1978), cert, denied, 361 So.2d 831 (Fla.1978), and cases cited. This rule is applicable and controlling in this case because of the real possibility that if the claim had been brought to the attention of the court and the prosecution, it might well have been obviated by the introduction of additional testimony — as, for example, by the victim’s answer to a single specific question as to whether the implement in Pinder’s hand was or was not a toy. We will not reverse on the basis of an initial appellate assertion of alleged error which even may have been cured if advanced at the time of trial. See, Marks v. Delcastillo, 386 So.2d 1259, 1266-67 (Fla.3d DCA 1980), review denied, 397 So.2d 778 (Fla.1981).

Affirmed.

      . The “gun” itself was never recovered.

      . The defense did contend that the evidence did not show that the gun was “capable of firing a projectile.” Under Sec. 790.001(6), however, which defines a firearm as including even the frame or receiver of such a weapon, no such showing is necessary. Machado v. State, 363 So.2d 1132 (Fla.3d DCA 1978), cert, denied, 373 So.2d 459 (Fla. 1979).

      . By the very “act” of not objecting, the party who does not properly preserve error below necessarily takes his chances as to whether there was in fact any way in which the objection could have been obviated; in this case, whether the victim was indeed able to differentiate between a firearm and a toy. In other words, fundamental error may exist only when, as an essential precondition, it clearly and affirmatively appears that the result could not have been affected by the failure to object. See, Pait v. State, 112 So.2d 380 (Fla. 1959); Marks v. Delcastillo, infra, 386 So.2d at 1266-68.


text:
    James GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-436.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    James Gonzalez, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellee having filed his response thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous with the exception that in case number 78-11101, although we affirm the judgment, since defendant failed to receive credit for time served, the sentence in that case is hereby vacated and the cause remanded for resentencing. On remand, defendant should be credited with time served prior to his release on probation. State v. Jones, 327 So.2d 18 (Fla. 1976); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978). The public defender’s motion to withdraw is granted and the judgment and sentence in case number 78-8213 are affirmed.

Remanded for resentencing.


author: BARKDULL, Judge.

text:
    Rosaleen PARTIN, natural mother of Belinda Lyon, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1538.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.

      Gold & Fox and Myron M. Gold, Coral Gables, for appellant.
    Deutsch & Blumberg and Steven Deutsch, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   BARKDULL, Judge.

Rosaleen Partin, the natural mother of Belinda Lyon (a child born in 1975), brings this appeal from a final judgment of permanent commitment of the circuit court, entered in favor of the Florida Department of Health and Rehabilitative Services.

In January, 1977, a City of Miami police officer visited the apartment of Rosaleen Partin and found her to be in an intoxicated condition; found the condition of her residence to be unclean, and found her child, Belinda Lyon, to be lying in bed covered with her own excrement. Mrs. Partin agreed that she was unable at that time to care for her child and, accordingly, the Florida Department of Health and Rehabilitative Services [the Department] placed the child in a shelter home. By court order of January 12, 1977, the child was declared dependent and placed in the temporary custody of the Department until a judicial hearing could be held.

At the court’s direction, Mrs. Partin underwent psychological examinations and counselling in June, 1977. Due to her emotional and alcohol-related problems, she was found not to be in a proper condition to care for her child. The testimony of two social workers, who had counselled Mrs. Partin, was to the effect that she was given the child to take home for an extended weekend visit, but failed to return the child. At that time, she was found in her apartment again intoxicated, and the child was again found covered with her own excrement and with a bottle of sour milk in her hand. Also, there was testimony that Mrs. Partin failed to attend various meetings and coun-selling sessions. Finally, there was testimony that the child was doing well, emotionally and physically, in a foster home.

In July, 1979, the Department petitioned the court for the permanent commitment of the child on the grounds that such action was in the child’s best interest. Thereafter, the court again ordered Mrs. Partin to be examined, resulting in a report by a Dr. Walter Reed stating that Mrs. Partin’s condition had improved and that the earlier findings of pseudo-neurotic schizophrenia was no longer prominent. Dr. Reed could not testify about Mrs. Partin’s lifestyle, but he did testify that she herself claimed to be greatly improved and desirous of her child’s return. However, Dr. Reed did testify that it would be less traumatic for the child to be adopted than to remain with her natural mother. He also determined that because of Mrs. Partin’s poor judgment it would be dangerous for the child to be left in her care. He offered a poor prognosis for Mrs. Partin in the years to come. The result of this, his second set of tests, showed that she had made little improvement and still lacked the ability to care for her child properly.

After hearings on three different dates, the trial court entered an order wherein it was found that the child’s natural father was unknown and/or unavailable; that Mrs. Partin had psychological emotional problems preventing her from adequately caring for-her child; that she had neglected the child when the child was in her care, and that there was an immediate need for the child to have a stable home environment on a permanent basis. For the best interests of the child, permanent commitment to the Department was ordered for the purposes of subsequent adoption.

The appellant urges two points for reversal: (1) That the court erred in admitting certain testimony from Dr. Reed in regard to the 1977 examination because, although conducted under his supervision, the tests were not actually administered by him, and (2) That the evidence was insufficient to support the order of commitment.

As to the first error urged, we find no merit. The tests in question were routine psychological tests, administered by a graduate student under the direction of the doctor who was concededly qualified and he was amply capable of interpreting the results as recorded by his assistant. In this connection, see: Santos Wrestling Enterprises, Inc. v. Perez, 367 So.2d 685 (Fla. 3d DCA 1979). Turning to the sufficiency of the evidence, the statute involved reads, in part, as follows:

“39.41 Powers of disposition.—
(1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
(d) 1. Permanently commit the child to the department or a licensed child-placing agency willing to receive the child for subsequent adoption:
a. (I) If the court finds that the parent has abandoned, abused, or neglected the child; ”

This statute has been found to be constitutional. In re Interest of Camm, 294 So.2d 318 (Fla.1974). The trial judge made a specific finding that the child had been neglected, which finding is amply supported by the evidence in the record. He further found it was in the best interests of the child for her to be permanently committed for purposes of adoption, and no error appears in this regard. In re Interest of Camm, supra; In the Interest of Contrino, 338 So.2d 246 (Fla. 3d DCA 1976).

Therefore, for the reasons stated, the order of commitment here under review be and the same is hereby affirmed.

Affirmed.

      . Mrs. Partin presented no testimony or evidence at the three hearings conducted on the petition, although represented by counsel at all times.

      . It should be noted that Dr. Reed’s opinion is fully supported by a second testing performed, personally, by Dr. Reed. Therefore, if any error occurred in the admission of testimony based upon the 1977 examination, it would at most constitute harmless error. See: Section 59.041, Florida Statutes (1977).


text:
    James I. MOORE, Jr., Appellant, v. William A. FREEMAN, Jr., Sheriff of Monroe County, Sgt. Robert Gregory, Det. Ronald C. Rexroat, Det. Michael Barber, and Corporal John K. Noonan, Appellees.
    No. 80-1755.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Ezzo, Garel & Saylor, Miami, for appellant.
    Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

James I. Moore, Jr. takes this appeal from a summary final judgment entered by the Circuit Court in and for Monroe County, Florida in favor of defendants William A. Freeman, Jr., Sheriff of Monroe County, Sergeant Robert Gregory, Detective Ronald C. Rexroat, Detective Michael Barber and Corporal John K. Noonan, in an action brought by plaintiff against the defendants arising out of injures sustained by plaintiff when he was shot by one of the officers while he was attempting to burglarize the Buccaneer Lodge.

The record before us discloses that the summary final judgment appealed was entered for the defendants before plaintiff, through no fault of his own, had completed his discovery.

Plaintiff contends on appeal that the entry of summary judgment was premature since he had insufficient time to commence discovery and complete discovery. We agree and reverse. Cullen v. Big Daddy’s Lounges, Inc., 364 So.2d 839 (Fla. 3d DCA 1978); Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla. 3d DCA 1975).

Since we are reversing the entry of summary judgment solely on the grounds that the ruling was premature, we have not considered the other points raised.

Reversed and the cause is remanded to the trial court for further proceedings which may include further motions for summary final judgment.

Reversed and remanded with directions.


author: PER CURIAM. BASKIN, Judge

text:
    Edythe R. MILLER, Appellant, v. Herbert PAIGE, Appellee.
    No. 80-2359.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.

      Talbot W. Trammell, Daniels & Hicks, Miami, for appellant.
    Joseph H. Murphy, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. New Products Corporation v. City of North Miami, 241 So.2d 451 (Fla.3d DCA 1970), cert denied, 244 So.2d 434 (Fla. 1971).

BASKIN, Judge

(dissenting).

The majority decision permits appellee to avoid the unambiguous language expressed in the contract between the parties.

This contract is contingent upon Purchaser’s ability to obtain permission from the City of Coral Gables to use the above described property for surface only off-street parking, which permission must be obtained by Purchaser on or before June 20,1979 or otherwise Seller, at her option, may cancel this contract, in which event Purchaser’s deposit shall be returned to him. (emphasis added).

Mr. Paige’s claims that the condition of obtaining offrstreet parking was for his benefit, and that his waiver of the condition bound Mrs. Miller, belies the clear statement to the contrary contained in the agreement prepared by his attorney. Unambiguous language in a contract should be given its expressed meaning. Board of Public Instruction of Dade County v. Fred Howland, Inc., 243 So.2d 221 (Fla.3d DCA 1970); 11 Fla.Jur.2d, Contracts § 114 at 411 (1979). New Products Corp. v. City of Miami, 241 So.2d 451 (Fla.3d DCA 1970), cert. denied, 244 So.2d 434 (Fla.1971), cited by the majority, is inapplicable since, in that case, the purchaser waived obligations on the part of the seller with regard to rezoning, whereas here, the majority decision permits the purchaser to waive his own opportunity to obtain rezoning and, in addition, permits the purchaser to waive the seller’s option to cancel as provided in the contract.

For these reasons, I would reverse the summary judgment granting appellee specific performance and require the trial court to grant appellant Miller’s motion for summary judgment.


text:
    ALTON BEVERAGES, INC., Petitioner, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO of the State of Florida, Respondent.
    No. 81-504.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Sy Chadroff and Lane Abraham, Miami, for petitioner.
    Harold F. X. Purnell, Tallahassee, for respondent.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petition for review denied. See, Aurora Enterprises, Inc. v. State of Florida, Department of Business Regulation, 395 So.2d 604, note 3 (Fla.3d DCA 1981); Lerro v. Department of Professional Regulation, 388 So.2d 47 (Fla.2d DCA 1980).


text:
    Algie BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-656.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied April 29, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed for a new trial. See Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied February 27, 1981, and Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: McCORD, Judge.

text:
    SUNLAND TRAINING CENTER and Division of Risk Management, Appellants, v. Sallie Mae BROWN, Appellee.
    No. TT-425.
    District Court of Appeal of Florida, First District.
    April 8, 1981.

      Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding benefits to appellee/claimant. We reverse.

Appellee filed two claims for compensation, resulting from two separate work-related accidents which occurred on April 26,1975, and October 16,1976. In the notice of hearing on her claims, the deputy commissioner listed the dates of both accidents, thereby indicating that both accidents would be considered together. At the outset of the hearing, the parties agreed to consolidate the claims relating to both accidents. However, when the deputy commissioner handed down his order, he ruled only as to the 1976 accident. Appellants cite as error the deputy commissioner’s failure to rule on the 1975 accident. Both parties agree that evidence was not presented as to the 1975 accident. Therefore, the deputy commissioner had no evidence upon which to base a decision as to the 1975 accident. We recognize that a deputy commissioner should resolve all issues before him. See Davidson v. Nezelek, Inc., IRC Order 2-3229 (1977), and Andrews v. Strecker Body Builders, 92 So.2d 521 (Fla.1957). However, in this case, although the 1975 accident was in issue, appellee did not meet her burden of proving her claim as to that accident. Therefore, we remand to the deputy commissioner for entry of an order disposing of the 1975 claim for lack of evidence.

As to the disposition of the claim relating to the 1976 accident, appellants have raised two points for review. In one point, appellants argue that the deputy commissioner erred in ordering employer/carrier to pay for past medical treatment by Dr. Sanchez and the bills from Union General Hospital and Gainesville Radiology Group. Without seeking authorization from her employer as required by § 440.13(1), Florida Statutes, appellee consulted Dr. Sanchez, who hospitalized her for tests. Appellee did not inform her employer of her hospitalization until after her discharge. Neither Dr. Sanchez, the hospital, nor the radiology group submitted the proper forms as required by § 440.13(1). In ordering payment of the medical bills, the deputy commissioner found that the treatment and the hospitalization was the result of an emergency situation, thereby excusing noncompliance with § 440.13(1). However, the record is void of competent substantial evidence indicating emergency. Therefore, because of appellee’s noncompliance with § 440.13(1), the award of payment of those medical bills was error.

In their last point on appeal, appellants assert that the deputy commissioner erred in.ordering employer/carrier to pay compensation at the rate of $79.50. The parties had stipulated to an average weekly wage of $132.50. At the hearing, appellee testified that she received $257 per month in social security benefits. The deputy commissioner found that she received $250 per month in social security benefits. Section 440.15(10), Florida Statutes, provides that weekly compensation payable to a claimant, when combined with the social security disability benefits, cannot exceed 80% of the employee’s average weekly wage. Mathematical computation reveals that the award of $79.50 per week, when combined with the social security disability benefits appellee receives, results in appel-lee receiving weekly compensation benefits in excess of 80% of her average weekly wage. . We reverse the award of $79.50 temporary total disability benefits and remand for entry of an award of temporary total disability benefits which comports with the requirements of § 440.15(10).

Reversed and remanded for entry of a new order consistent with this opinion.

SHIVERS and JOANOS, JJ., concur.


author: SHAW, Judge.

text:
    MARATHON THEATRE; Old Republic Insurance Company, Appellants, v. John T. CAPPS, Appellee.
    No. XX-70.
    District Court of Appeal of Florida, First District.
    April 8, 1981.
    John F. McMath, P.A., Miami, for appellants.
    Alfred Kreisler, Miami, for appellee.
   SHAW, Judge.

The employer/carrier appeal a workers’ compensation award of temporary total, temporary partial and permanent partial disability benefits.

In this instance the award .of permanent partial disability benefits based on loss of wage earning capacity is governed by § 440.25(3)(a), Florida Statute (1978), which provides that no claim for diminution of wage earning capacity shall mature until 90 days after the employee has reached maximum medical improvement. The appellants correctly point out that maximum medical improvement was reached on April 25,1980. Hearings were held on April 28 and June 25, 1980. The appellee argues that the order awarding benefits was not entered until July 28, 1980, consequently the claim for wage earning capacity loss was mature at the time of adjudication.

This reasoning misses the point. The obvious purpose of the statute is to allow the claimant a 90-day period after maximum medical improvement in which to test his wage earning capacity. During this testing period it was error for the Deputy to hold hearings on the issue of wage earning capacity diminution. That portion of the order awarding such benefits is reversed. The award of permanent disability compensation should have been restricted to the 15% anatomical disability found by Deputy.

The 90-day period having now elapsed the issue of wage earning capacity diminution is ripe for adjudication. The cause is remanded to the Deputy Commissioner for the taking of such additional evidence on the issue as he deems proper and the entry of an order based upon his findings.

Points 1, 2, 3 and 4 are without merit and the order, as it relates to these points, is accordingly affirmed.

SHIVERS and THOMPSON, JJ., concur.


text:
    MILLER CONSTRUCTION COMPANY, INC., and the American Insurance Company, Appellants, v. The FIRST BAPTIST CHURCH OF LIVE OAK, INC., Appellee.
    No. ZZ-17.
    District Court of Appeal of Florida, First District.
    April 8, 1981.
    George H. Russ, of Davis, Russ & Nichols, Leesburg, for appellants.
    Ernest A. Sellers, of Airth, Sellers & Lewis, Live Oak, for appellee.
   PER CURIAM.

This was brought as an appeal from an order denying defendant’s motion to dismiss the complaint and to compel arbitration. It is brought from a nonappealable order, but we treat it as common law certiorari. See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980).

In 1975 the First Baptist Church of Live Oak and Miller Construction Company of Leesburg entered into a contract whereby Miller Construction would build a church in Live Oak. Included in the contract was a standard arbitration clause which provided:

All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof ... shall be decided by arbitration in accordance with the Construction of Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. (Emphasis added.)

In November, 1978, the Church filed suit in Suwannee County alleging default because of substantial defects. Before Miller answered or in any way responded, the Church voluntarily dismissed the suit in accord with an agreement between the parties which required Miller to correct the deficiencies.

A new action which alleged identical grounds as the first was filed in April, 1980. Miller responded with a motion to dismiss and a motion to compel arbitration. After a telephone hearing, the trial judge denied Miller’s motions.

The point presented on appeal is whether Miller waived his right to arbitration.

A party may impliedly waive its right to arbitration by engaging in conduct which is inconsistent with that right. Seville Condominium No. 1, Inc. v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976). In Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla.3d DCA 1966), the defendant answered plaintiff’s complaint without raising the arbitration issue, counterclaimed upon the same contract, allowed the cause to proceed for five and one-half months, and allowed the jury to be impanelled. Only after the jury was impanelled did the defendant raise the defense of arbitration. The Third District Court of Appeal held that the conduct of the defendant amounted to a waiver of the arbitration provision in the contract and thus the trial court had erred in staying the proceeding and in directing the parties to proceed with arbitration.

In the case sub judice, the Church’s contention that Miller waived his right to arbitration is without merit. Miller’s conduct in attempting to resolve the dispute amicably and without any formal proceeding was not inconsistent with his right to arbitration. After all, arbitration, like litigation, is not needed until the parties are at an apparent impasse and a third entity is deemed necessary to render a decision. Furthermore, there was no undue delay on Miller’s part in moving to compel arbitration after all settlement attempts had failed.

Thus, the only waiver in this case was on the part of First Baptist Church when it commenced suit in the circuit court. Since there has been no “mutual agreement” to suspend arbitration, we find that the trial court erred in denying appellant’s motions to dismiss and to compel arbitration.

For the reason stated, certiorari is granted and the order is quashed with directions to the trial court to issue an order directing the parties to proceed with arbitration pursuant to the terms of their agreement and staying the legal proceeding pending arbitration, pursuant to Section 682.03(3), Florida Statutes (1967).

McCORD, ROBERT P. SMITH, and ERVIN, JJ., concur.


text:
    STATE of Louisiana v. Ronald WILLIAMS.
    No. 80-KA-1857.
    Supreme Court of Louisiana.
    March 11, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Glynn F. Voisin, Asst. Dist. Atty., for plaintiff-appellee.
    Jeffrey J. Himel, Houma, for defendant-appellant.
   PER CURIAM.

Defendant Ronald Williams was charged by bill of information with intentionally passing a forged check, a violation of La. R.S. 14:72. On June 5, 1980, he was tried before a six person jury, which found him guilty as charged. Thereafter, the court sentenced him to serve five years at hard labor. On appeal he urges two assignments of error.

We have reviewed defendant’s first assignment of error, relative to the sufficiency of the evidence, and found it to be without merit. However, we are unable to review defendant’s second assignment, contending that his sentence was excessive, because the trial court’s statement of sentencing reasons does not set forth the considerations taken into account nor its factual findings, as required by Louisiana Code of Criminal Procedure Article 894.1.

We have held that the sentence must be particularized to the defendant and his offense, taking into account any mitigating circumstances in the case. See, State v. Smith, 389 So.2d 1262 (La.1980); State v. Jackson, 360 So.2d 842 (La.1978). When the reasons for an apparently severe sentence are not assigned and do not appear on the record itself, the sentence must be vacated. See, State v. Cox, 369 So.2d 118 (La.1979); compare, State v. Day, 391 So.2d 1147 (La.1980).

Accordingly, defendant’s conviction is affirmed, but the sentence is set aside and the case is remanded for resentencing in compliance with Article 894.1.

      . A mere recitation of the factors listed by Article 894.1 as justifying imprisonment will not suffice to explain the sentence imposed absent some articulation why they are applicable. State v. Franks, 373 So.2d 1307 (La.1979).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Reginald DUNCAN.
    No. 80-K-2278.
    Supreme Court of Louisiana.
    March 20, 1981.

      Theon A. Wilson, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, John Craft, Asst. Dist. Attys., for plaintiff-respondent.
   LEMMON, Justice.

This court granted defendant’s application for certiorari to decide whether the state’s failure to hold a hearing before September 6, 1980, on a probation violation warrant executed on March 7,1979, violates defendant’s rights to due process, when defendant was in federal prison during virtually the entire period in question. A second issue is whether defendant is entitled to credit for time served in federal prison, if his probation was properly revoked.

I.

On January 24, 1977 defendant was sentenced to. serve ten years in prison for attempting to obtain a controlled dangerous substance by fraud. R.S. 40:971. Although he was adjudicated a habitual offender on the basis of a prior conviction of simple robbery, his sentence was suspended, and he was placed on active probation for ten years, with special conditions relative to drug addiction treatment being imposed.

On March 7,1979 defendant was arrested for violating his probation. When it was discovered that he was wanted by federal authorities for federal offenses committed during the probationary period, defendant was transferred to federal custody. On April 6, 1979 he pleaded guilty to a federal indictment charging felony offenses in connection with his forgery of a treasury check. 18 U.S.C. 495. He was sentenced to serve three years in the custody of the Attorney General of the United States. The record does not reveal any request by defendant, while in federal prison, to have a hearing on his pending probation revocation.

When defendant was released from federal prison on August 29, 1980, he was transferred back to state custody. Thereafter, on September 26, 1980, a probation revocation hearing was held. The trial court denied defendant’s motion to dismiss the revocation charge and alternatively to reduce the term, but amended the original ten-year term and sentenced defendant to five years imprisonment. This court granted certiorari. La., 393 So.2d 113.

II.

At the outset it is important to recognize that this case is governed by principles of due process and not by the defendant’s right to a speedy trial guaranteed by U.S. Const. Amend. VI and La.Const. Art. I, § 16 (1974). See State v. Johnson, 363 So.2d 458 (La.1978). The cited provisions only apply to the right of an accused to have an expeditious determination of guilt. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Johnson, above.

Nevertheless, principles of fundamental fairness dictated by the due process clause of the Fourteenth Amendment prohibit inordinate delays in post-conviction proceedings such as imposition of sentence or, as here, revocation of probation (or parole), when the delays cause prejudice to the defendant. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); State ex rel. Bertrand v. Hunt, 308 So.2d 760 (La. 1975). Similarly, C.Cr.P. art. 900 requires that a probation revocation hearing be held without unnecessary delay after the probationer has been arrested for violation of probation. Because the defendant in this case was arrested for violating his probation on March 7, 1979 and probation was not revoked until September 26, 1980, we must decide whether the delay was unnecessary or unreasonable within the contemplation of the codal article and whether defendant was denied due process of law because of the elapsed period.

The revocation hearing was held shortly after defendant was returned to state custody by the federal authorities. The pertinent inquiry, therefore, is whether defendant’s constitutional and statutory rights were violated because the state failed to conduct a revocation hearing while defendant was in federal custody.

In State ex rel. George v. Hunt, 327 So.2d 375 (La.1976) this court said:

“The state is not required to seek a prisoner’s return for trial on revocation charges except where necessary to a timely initiation of the revocation proceedings or the prevention of real prejudice to the prisoner.” 327 So.2d 377.

In determining whether the delay was unreasonable or prejudicial, the court should adopt a flexible approach in which all of the circumstances are evaluated. See City of Baton Rouge v. Bourgeois, 380 So.2d 63 (La.1980) and State v. Johnson, above, dealing with this court’s approach to “unreasonable delay” in sentencing. See also C.Cr.P. art. 874.

Here, we do not find that the delay was either unreasonable or prejudicial. Defendant’s whereabouts were known, and he was available to state authorities. Nevertheless, there was no compelling reason to conduct a revocation hearing immediately, since defendant could not be prejudiced by any delay. Under C.Cr.P. art. 901 defendant’s probation could be revoked upon proof of conviction of a federal felony offense committed during the probationary period. The state has only to establish the federal conviction as the basis for revocation. State v. O’Conner, 312 So.2d 645 (La. 1975). In this case, therefore, positive and unimpeachable proof of an unexcusable violation of probation was a relatively easy thing to establish. On the other hand the delay could have been beneficial. Revocation is not mandated when there has been a felony conviction for conduct occurring during the term of probation. C.Cr.P. arts. 900 and 901. Trial courts must exercise discretion, even when proof of a violation has been established. See State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976); State v. Lassai, 366 So.2d 1389 (La.1978). Therefore, the prisoner’s good behavior during a period .of incarceration could have favorably impressed the trial judge regarding the decision to reinstate or to revoke probation. See Moody v. Daggett, above.

We conclude that the overall circumstances of this case do not establish that the mere passage of time, while defendant was serving part of a subsequent sentence, constituted an “unnecessary” or unreasonable delay. For similar reasons, and principally because there has been no showing of prejudice, we conclude that defendant was not denied due process of law.

III.

Defendant also contends that he was entitled to credit for time served while in the custody of federal authorities. There is plainly no basis for this contention. This court has required trial courts to award credit for time served in out-of-state institutions when the prisoner’s incarceration was caused by a detainer issued on the Louisiana charge against him. See Jennings v. Hunt, 272 So.2d 333 (La.1973). However, this is not the case here, since defendant’s out-of-state confinement was caused by his conviction of a federal offense committed while on probation.

Although C.Cr.P. art. 883.1 now authorizes trial courts to award concurrent sentences with federal terms, the code explicitly authorizes consecutive terms if probation is revoked because of the commission of another crime while on probation. See C.Cr.P. art. 901. Moreover, there is certainly no constitutional barrier to denial of concurrent sentences. The accused in this case was a multiple offender who, although given an opportunity to rehabilitate himself, continued to commit crimes. His proven record of repeated criminality speaks strongly against an award of a concurrent sentence. See State v. Watson, 372 So.2d 1205 (La.1979).

Defendant is entitled to have credited toward his Louisiana sentence (1) the time spent in custody between his arrest as a probation violator and his transfer to federal custody and (2) the time spent in custody between the end of his federal custody and eventual revocation.

We accordingly affirm the trial court’s denial of defendant’s motion to dismiss the petition for revocation and motion to reduce the term of revocation. The trial court’s revocation of probation is also affirmed. The matter is remanded to the trial court for reimposition of sentence with appropriate credit for any time served in actual custody solely as a result of the revocation proceedings.

       Judges Ellis, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      .Whether this period of probation exceeds the maximum five-year probationary period authorized by C.Cr.P. art. 893 is not at issue. He was revoked within five years.

      . Apparently his probation officer ascertained that the defendant was not in compliance with probation conditions and requested that the warrant be issued.

      . The defendant’s assertion, in brief, to the contrary is not supported by the record.

      . In brief the state argues that the trial court did in fact reduce the term. However, a reading of the court’s comments support a conclusion that the reduction was inadvertent error, since the original five-year sentence had been increased at the multiple offender hearing. In any event, should there be confusion, the state may file a motion in the trial court requesting clarification of the sentence. At the close of the probation revocation hearing the trial judge said:
      “BY THE COURT:
      “All right. I find the defendant has violated his probation. The sentence which was originally suspended, is now imposed upon the defendant.
      “The defendant is ordered to serve five years in the custody of the Criminal Sheriff for the Parish of Orleans.
      “Mr. Duncan, I don’t have any hesitation in doing this. You’ve had more than once [sic] chance. You’ve had two or three. You abused them. That’s your last chance. I’m going to oppose any good time for this defendant. Remand the defendant to Parish Prison at this time.”

      . This case does not involve the problems presented in those cases in which the revocation proceedings were not timely instituted or in which the hearing was conducted after the probationary period elapsed. See State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La. 1979); State v. Jones, 285 So.2d 231 (La. 1973). The revocation hearing in this case was held well within the period of probation.

      . Here defense counsel offered no evidence or argument regarding defendant’s behavior while in the federal prison.

      . In briefs filed in the trial court and in this court defendant argues prejudice due to the denial of an opportunity to have the state and federal sentences run concurrently. This argument assumes that the defendant was entitled to such favorable treatment. Despite his probation officer’s conscientious efforts (testified to by the probation officer at the revocation hearing) to help him to rehabilitate himself, defendant would not cooperate with the drug rehabilitation program and manifested recidivist tendencies by continuing to engage in criminal activity. The trial judge was understandably unsympathetic.
      Failure to hold a pre-revocation hearing is similarly not prejudicial because his detention was not the result of the probation violation warrant. It was the result of his guilty plea to a federal crime and the subsequent federal sentence. When the defendant, as here, admits (by his guilty plea) the violation, the state’s failure to hold a preliminary revocation hearing (especially when a hearing is not requested, as the record reflects here) is not a basis for dismissing the revocation proceedings.

      .In evaluating whether pre-accusation delay entitled a defendant to dismissal of charges, courts have required a showing of prejudice. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Medina, 569 F.2d 349 (5th Cir. 1978); State v. Malvo, 357 So.2d 1084 (La.1978). After a showing of prejudice has been made, courts then evaluate the prosecutor’s justification for the delay in deciding whether a due process violation has occurred. United States v. Medina, above. For reasons stated earlier, no prejudice has been shown in this case.

      . C.Cr.P. art. 880; Jennings v. Hunt, above.


author: CALOGERO, J.,

text:
    Mrs. Sheryl CHEATHAM, Individually and On Behalf of Her Minor Son, Charles Cheatham v. The CITY OF NEW ORLEANS.
    No. 81-C-0421.
    Supreme Court of Louisiana.
    March 20, 1981.
   In Re: Luke Fontana, applying for writs of Certiorari, or Review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, Numbers 12,067 and 12,084.

Writ denied.

CALOGERO, J.,

concurs in the denial.

I concur in the denial of writs herein being of the view that the Court of Appeal decision concerned only the procedural posture of the case and not the merits of relator’s claim, and I agree that relator may not proceed summarily in an effort to enforce a lien against the City of New Orleans.