author: DELL, Judge.

text:
    CITY OF LAKE WORTH, Florida, Appellant, v. Souheil Aziznakie NICOLAS, Appellee.
    No. 81-993.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Richard H. Gaunt, Jr., of Law Offices of Frank G. Cibula, Jr., West Palm Beach, for appellant.
    William S. Frates, II, and Barbara Kelley of Frates & McCall, Palm Beach, for appel-lee.
   DELL, Judge.

In a personal injury action the City of Lake Worth appeals the denial of its motion for a new trial and the trial court’s denial of its motion to limit the final judgment to $50,000.

The appellee Nicolas suffered personal injuries when a truck crane owned by the appellant and operated by appellant’s employee, Roy Calvin, collided with his vehicle. The appellee joined both the City of Lake Worth and Calvin as defendants. The trial court denied appellant’s pretrial motion in limine to limit appellee from offering evidence pertaining to any acts of negligence other than the negligent operation or maintenance of the truck crane. The jury awarded appellee $125,000. After applying the comparative negligence factor found by the jury, the court entered a final judgment for the appellee in the amount of $68,750 plus costs of $2,851.65.

Appellant raises three points on appeal: First, that the trial court erred when it permitted the introduction of evidence pertaining to safety measures which the appellant should have taken when operating a truck crane and evidence of “lost profits”; second, that pursuant to Section 768.28(5), Florida Statutes, (1975), the final judgment should have been limited to $50,000; and last, that the $50,000 limitation of Section 768.28(5) applies to costs and interest.

We find no merit in appellant’s first point on appeal. The appellant had adequate notice from the complaint, the pretrial discovery and the pretrial statement filed by appellee, that the appellee’s claim of negligence would include evidence pertaining to violation of safety standards. Appellant’s failure to claim surprise or move for a continuance supports this conclusion and accordingly, we find no error in the trial court’s admission of the evidence which appellant sought to exclude. The trial court also properly admitted the evidence concerning appellee’s loss of “business profits.” Appellee’s loss of business profits directly related to his claim for past and future loss of income and earning capacity.

Appellee has conceded that Section 768.28(5) applies to municipalities and that the judgment for damages must be limited to $50,000.

Lastly, appellant argues that the $50,000.00 limitation of Section 768.28(5) applies to costs and interest. The First, Second and Third District Courts of Appeal have considered this question. The Third District held, with Judge Schwartz dissenting, that Section 768.28(5) limits a judgment to $50,000 regardless of its components. Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla. 3d DCA 1981), followed in Godoy v. Dade County, 410 So.2d 1000 (Fla. 3d DCA 1982). The First and Second District Courts of Appeal held that the $50,-000 limitation on municipal liability does not apply to interest and costs. State Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), cert. denied, 364 So.2d 892 (Fla.1978); State Board of Transportation v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980), affirmed, 402 So.2d 1155 (Fla.1981). We believe that the reasoning set forth in Yant and Knowles, supra, and by Judge Schwartz in his dissent in Berek, supra, is in accord with the intent of the legislature when it enacted Section 768.-28(5). Therefore we hold that the limitation of municipal liability as provided in Section 768.28(5), Florida Statutes (1975) does not apply to costs and post judgment interest.

Accordingly, we remand this case with directions to the trial court to enter judgment in favor of the appellee in the amount of $50,000, plus costs. Interest shall accrue at the statutory rate until the final judgment is satisfied.

REMAND WITH DIRECTIONS.

GLICKSTEIN and WALDEN, JJ., concur.

      . F.S. 768.28(5) was amended effective October 1, 1981.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ACTION ELECTRIC & REPAIR, INC., a Florida corporation, Appellant, v. Joseph BATELLI, Appellee.
    No. 81-2100.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Joel D. Kenwood of Baskin & Sears, P. A., Boca Raton, for appellant.
    J. Patrick Floyd, Fort Lauderdale, for appellee.
   PER CURIAM.

Action Electric and Repair, Inc. seeks review of a non-final order which granted a preliminary injunction in favor of the ap-pellee, Joseph Batelli, and required appellant to deposit certain funds in escrow pending resolution of appellee’s suit to collect damages on a promissory note. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

Appellee filed a complaint seeking damages, interest, costs and attorneys fees allegedly caused by appellant’s breach of a $40,580.00 promissory note. The complaint failed to allege any basis for equitable relief. However, the trial court granted ap-pellee’s motion for equitable relief and ordered appellant not to dissipate its assets and more particularly its draws from a certain construction project. The trial court later granted a requested ten day extension of the temporary restraining order. Upon expiration of the temporary restraining order, appellee moved for and was granted a preliminary injunction. The preliminary injunction enjoined and restrained appellant from disposing of its next two construction draws and ordered appellant to deposit those funds into an interest bearing escrow account pending the outcome of the action on the promissory note. Appellant brings a timely appeal of this preliminary injunction order.

Appellant raises three points on appeal: first, that appellee failed to plead and prove any of the essential elements necessary for injunctive relief; second, that injunctive relief may not be used to enforce payment of a promissory note; and last, that the preliminary injunction failed to require posting of a bond. Although each of appellant’s points on appeal have merit, we will only discuss appellant’s second point.

The order granting appellee’s motion for a temporary injunction amounted to the use of injunctive relief as a substitute for attachment. The complaint alleged a simple cause of action to recover damages for breach of a promissory note. No facts were alleged which would have permitted the court to grant injunctive relief and appel-lee’s motion for injunctive relief was insufficient to convert this cause from an action for damages to an equitable action.

No temporary injunction may be issued where the complaint upon which it is based sets out no ground for equitable relief. Blume v. Giles, 143 Fla. 615, 197 So. 344 (1940). No action for equitable relief can be maintained unless it falls within some acknowledged head of equity jurisprudence. Thus where a complaint seeks an injunction to prevent a defendant from disposing of assets until an action at law on a debt can be concluded, no equitable cause of action is stated and no injunction should issue. B.L.F. Realty Corporation v. Mary Williams Co., 101 Fla. 254, 134 So. 47 (1931). An action for damages does not become an equitable action merely because a request for injunction is also made. Ramsey v. Lovett, 89 So.2d 669 (Fla.1956).

Acquafredda v. Messina, 408 So.2d 828 (Fla. 5th DCA 1982).

As in Acquafredda v. Messina, supra, the appellee failed to assert any cause of action upon which an injunction could issue. The appellee did not ask for the available legal remedy of pre-judgment attachment but instead moved for injunctive relief. This procedure was improper and the preliminary injunction based thereon must be vacated.

Accordingly, the preliminary injunction in favor of the appellee is vacated and this case is remanded to the trial court for further proceedings consistent with this opinion.

VACATED and REMANDED.

ANSTEAD, HURLEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    FARMERS PRODUCTION CREDIT ASSOCIATION, Appellant, v. EMPERADOR SEAFOODS, INC., Thomas F. Furtado and Lauren W. Furtado, Appellees.
    No. 81-2154.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Alan M. Sandler of Sandler & Holtsberg, Miami, for appellant.
    No appearance for appellees.
   HERSEY, Judge.

This is a timely appeal pursuant to Rule 9.130(a)(5), Florida Rules of Appellate Procedure, from a non-final order setting aside a final judgment entered after default.

A defendant is entitled to relief from a default judgment if he can demonstrate that his neglect to respond to the action was excusable, that he used due diligence in seeking relief upon learning of the default and that he had a meritorious defense. County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981). Excusable neglect is a necessary prerequisite to setting aside a final judgment entered after default. Atlantic Bank of West Jacksonville v. Washington, 360 So.2d 1145 (Fla. 1st DCA 1978); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978).

Here the record reflects that appel-lees were served with the complaint but failed to respond and therefore the trial court entered a judgment of default. Ap-pellees’ motion to set aside the final judgment contains only a bare allegation that failure to answer the complaint was based upon mistake, inadvertence and excusable neglect. No supporting facts were alleged. Further, at the hearing on the motion to set aside final judgment, appellees offered no reason or excuse for their failure to respond. Rather, the hearing was devoted almost entirely to appellees’ alleged meritorious defense. Even the affidavit submitted by appellees after the hearing contains no facts demonstrating that the failure to answer the complaint was excusable.

We therefore reverse and remand for reinstatement of the final judgment.

REVERSED and REMANDED.

ANSTEAD and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Raymond Wesley THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2212.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Richard L. Jorandby, Public Defender, and William M. Lasley, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., Tallahassee, for appel-lee.
   DOWNEY, Judge.

Thomas appeals from judgments of guilt entered pursuant to a jury verdict on two counts of burglary of a structure and a sentence of 365 days as a youthful offender.

On October 12, 1981, appellant entered a plea of no contest to two counts of burglary of a structure. The court accepted the plea and ordered a pre-sentence investigation (PSI), but assured appellant that he would be allowed to withdraw his plea if the PSI reflected a prior record, and the court intended to impose something other than probation. Sentencing was set for November 2, 1981. On that date the public defender informed the court that the state attorney, the public defender, and a probation and parole officer received information that appellant had prior mental illness. Due to this information and the fact of a prior arrest, the state attorney withdrew his agreement to the plea bargain. It appeared that Thomas had been evaluated in 1978 and diagnosed as schizophrenic with acute schizophrenic reaction. The trial judge stated that he had read the PSI, which indicated a psychiatrist had stated that in March, 1978, Thomas suffered “from a major psychiatric disorder of psychotic nature.” The evaluation followed a juvenile arrest for armed robbery, aggravated assault, and auto theft on March 17, 1978. The report indicated that Thomas responded well to treatment during a two week stay at Lakeland Manor and was discharged on April 14,1978. The treating psychiatrist strongly recommended that appellant be placed in a foster home upon discharge, receive out-patient psychiatric care, and be administered psychotropic medication.

The public defender representing Thomas had previously filed a motion requesting the court to appoint a defense expert pursuant to Florida Rule of Criminal Procedure 3.216 to assist the public defender in preparing a possible insanity defense. The public defender renewed the motion ore tenus and advised the court of her belief that appellant may have been insane at the time of the commission of the offense and may be incompetent to stand trial, based on the information about his prior mental illness and the doctor’s recommendation that appellant be continued on psychotropic medication, which had not been followed. The trial court summarily denied the motion and set the case for trial the following day. When the public defender protested that she could not be prepared to go to trial next day, the trial judge advised her, “all right, you just be here and do the best you can.”

Appellant contends the trial court erred in refusing to appoint an expert to assist the appellant in the preparation of an insanity defense and in requiring appellant to proceed to trial the following day. We hold both contentions have merit and reverse.

Florida Rule of Criminal Procedure 3.216(a) provides:

(a) When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense, he may so inform the court who shall appoint one expert to examine the defendant in order to assist his attorney in the preparation of his defense. Such expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.

Subsequent provisions of the rule provide that a defendant must give notice of intent to rely on the defense of insanity no later than fifteen days after the arraignment or the filing of a written plea of not guilty in the case. However, where good cause is shown why the notice was not given within said time constraints and the circumstances demonstrate a reasonable belief that the defendant may have been insane at the time of the commission of the offense or may be incompetent to stand trial, the motion shall be granted. Jones v. State, 362 So.2d 1334 (Fla.1978).

The record indicates that all parties concerned learned of appellant’s prior record of serious mental problems between the date of the plea bargain and the date of sentencing. The State thought the newly discovered evidence was serious enough to compel a withdrawal of its consent to the bargain. It seems to us that by the same token the public defender would logically reason that further inquiry might reveal that appellant had a legitimate insanity defense. We venture to say that ignoring such warning flags would likely lead to an ineffective counsel assertion during efforts at post conviction relief. Thus, it seems clear on this record that the court should have granted appellant’s 3.216 motion.

We are constrained to hold the court also erred when appellant was required to proceed to trial the following day. It does not suffice to say that appellant had several months to prepare for trial when a plea bargain had been struck and a sentence of probation had been agreed upon contingent upon an acceptable PSI. The purpose of the hearing on November 2nd was sentencing. However, under the circumstances, the State backed out of the bargain, justifiably, and one could hardly expect counsel to thereupon be prepared to go to trial the next morning. To be effective, counsel must have adequate time to “get her ducks in a row” as the saying goes, and less than twenty-four hours’ notice is inadequate under these circumstances.

Accordingly, the judgment and sentence is reversed and the cause is remanded with directions to grant appellant’s Rule 3.216 motion if it is renewed and thereafter grant appellant a new trial.

REVERSED AND REMANDED, with directions.

ANSTEAD and BERANEK, JJ., concur,


text:
    PARTHENON INSURANCE COMPANY, Appellant, v. Oswaldo BENITEZ, M.D., Appellee.
    Nos. 81-2214, 82-29.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellant.
    Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appel-lee.
   DOWNEY, Judge.

Appellant, Parthenon Insurance Company, seeks review of several non-final orders granting appellee, Oswaldo Benitez, M.D.’s motion for summary judgment as to insurance coverage and as to appellant’s right to contribution.

Jeffrey Burling was injured in an accident and taken to Lawnwood Medical Center for treatment. The emergency room physician, Dr. Chi Chiou Lin, treated Bur-ling and then called appellee, Dr. Benitez, for authority to admit Burling to the medical center. Under the by-laws, rules and regulations of the center, an emergency room physician cannot admit a patient to the center; only a staff doctor can do so. The center requires the private physicians on its staff to participate in an “on-call” roster kept at the emergency room. On the date of Burling’s accident, Benitez was on-call for the emergency room.

Upon being called, Benitez came to the center for the purpose of admitting Bur-ling. He also examined him and left written orders for his admission to the extensive care unit.

Dissatisfied with the care he received, Burling later successfully sued the center and both doctors for malpractice and was awarded a verdict of $10,000,000, which was later remitted to $6,300,000. When the suit was commenced, Benitez, who had no personal medical malpractice insurance, called upon Parthenon as the insurer of the medical center and its personnel for a defense and indemnification. Parthenon refused. In due course Benitez filed this suit for declaratory relief, requesting the court to declare that “he was an insured under that policy and that Parthenon Insurance Company was obligated to pay and satisfy any judgment entered against him in the first action and to reimburse and indemnify him for legal fees and costs expended in the defense of Burling’s medical malpractice action against him.” Parthenon filed an answer and a counterclaim seeking contribution from Benitez for his share of the Bur-ling judgment, which Parthenon had been forced to pay. Benitez answered the counterclaim, alleging that contribution would not lie against him because he was an insured under Parthenon’s policy covering the medical center. Benitez then moved for partial summary judgment on the question of coverage and partial summary judgment on Parthenon’s counterclaim for contribution. The trial court granted both motions in separate orders, which have been consolidated on this appeal.

The primary question on this appeal is whether Benitez was an insured under the policy that Parthenon issued to the medical center.

In pertinent part the Parthenon policy provides:

“2. COVERAGES
The Company agrees, subject to the terms, exclusions and conditions of this Policy to indemnify the insured the “Ultimate Net Loss” which the insured may sustain by reason of the liability imposed upon the insured by law or assumed by the insured under contract.
A. Comprehensive Hospital Liability.
For damage arising out of injury or death of any person caused or alleged to have been caused by professional service rendered or which should have been rendered by the named insured.
* * * * * *
5. DEFINITIONS
A. “Named Insured” and “Insured”
“Named Insured” wherever used, includes any subsidiary company (including subsidiaries thereof) of the named insured and any other company coming under the named insured’s control of which it assumes active management. The unqualified word “insured” where-ever used, includes the named insured and also:
(c) any executive, officer, director, trustee, hospital administrator, or superintendent member or shareholder thereof while active within the scope of their duties as such, and also includes a member of a formal accreditation, peer review or similar professional board or committee, any employee, any student nurse and any student technician while under the instruction of the insured, druggists, barbers, beauty parlor operators, and any authorized volunteer worker in a nonprofessional capacity of the named insured while acting within the scope of their duties as such, subject to the following additional exclusions:
% s{e s}s % sfc
2. Coverage under this policy is extended to apply to Medical Doctors while acting within the scope of their duties involving operation of the Emergency Room Facilities for the Named Insured.

Benitez contends that he was an insured under the medical center’s policy because he was a medical doctor “acting within the scope of his duties involving operation of the emergency room” when he committed the alleged acts of malpractice. The trial judge agreed and granted summary judgment on that issue. However, the evidence adduced via discovery does not demonstrate conclusively that Benitez was an insured under the wording of the policy. On the contrary, we believe that question is a genuine issue of fact for the trier thereof. The contested issue is whether Benitez was performing duties involving the operation of the emergency room. The question as to which functions would involve a private physician on call for the emergency room in the operation of the emergency room requires a factual determination. While Ben-itez claims he was so involved, the center claims that doctors performing his function have never been so considered. We think the issue should be tried.

The summary judgment for Benitez on the issue of contribution was granted because the trial court determined as a matter of law that Benitez was an insured and that an insurer cannot sue its insured for contribution. Since we must reverse the summary judgment on coverage, the summary judgment on the counterclaim for contribution must also be reversed.

Accordingly, the orders appealed from are reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

ANSTEAD and DELL, JJ., concur.


text:
    Ricky LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2228.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Richard L. Jorandby, Public Defender, and William Lasley, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We believe the evidence was sufficient to sustain the jury’s determination that appellant was an active participant in the burglary of an occupied conveyance. In addition, the hypothesis of innocence suggested by the appellant as a reasonable one in his statement to the police and his trial testimony was directly contradicted by the testimony of two eyewitnesses. For these reasons we do not believe we should substitute our judgment for that of the jury. Tibbs v. State, 397 So.2d 1120 (Fla.1981). We also find that the error complained of as to the court’s instructions to the jury was not properly preserved.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. STATE of Florida, Appellee.
    No. 82-122.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Harold L. Braynon, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Reversed and remanded with directions to dismiss the rule. Department of Health and Rehabilitative Service v. State, 338 So.2d 220 (Fla. 4th DCA 1976); Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1968); Thomson v. State, 398 So.2d 514 (Fla. 2d DCA 1981); Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975).

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    Andrew ESPOSITO, Appellant, v. Jean HORNING, Appellee.
    No. 82-333.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Jerome M. Rosenblum, P.A., Hollywood, for appellant.
    Jack Stein and Arthur R. Rosenberg of Bernstein, Bernstein, Feinman & Rush, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee, Jean Horning, filed suit against appellant, Andrew Esposito, in four counts. Count I sought declaratory relief, while the other three counts sought damages for breach of contract and fraudulent misrepresentation. The subject matter of the suit was a boat purchased by appellee, title to which ended up in appellant’s name. An amended complaint was filed, adding, in part, a count for preliminary injunction.

The trial court entered a preliminary injunction not contained in the record. However, it appears the order required the boat to be kept at a boatyard rather than in the possession of the appellant. On February 3, 1982, the trial court denied appellant’s motion to dismiss the "complaint and modified the preliminary injunction by requiring the boat to be kept at the same boatyard and charges to be paid by appellee. On February 11, 1982, the court denied appellant’s motions to dissolve the preliminary injunction and have the boat returned to him.

Appellant seeks reversal of the orders of February 3, 1982, and February 11, 1982. Three points are presented to demonstrate error. First, appellant contends error was committed in granting a preliminary injunction where irreparable injury was not pleaded and where there was no proof the boat was unique or peculiar, justifying an injunction. Second, appellant contends that the entire complaint was barred by the statute of frauds. Third, appellant argues that the grant of a preliminary injunction without a reasonable bond was improper.

Without any extended discussion, we hold there is no merit to the second and third points. However, the first point clearly demonstrates error.

The allowance of a preliminary injunction was erroneous on at least three grounds. The complaint is devoid of any allegation of irreparable injury. Absent such pleading and proof, a preliminary injunction may -not lawfully be entered. Next, a preliminary injunction may not be entered if there is an adequate remedy at law. The controversy at hand involves a boat, which appellee claims she bought pursuant to a contract with appellant, who was to repair the boat. In two weeks, she alleges, the boat was to be sold and the profit divided. Appellee contends that appellant improperly took title in his name and now refuses to comply with the contract. Appellee has claimed damages in a number of counts and, if the complaint is proven, she should recover for her damages. That is an adequate remedy at law. Lastly, an injunction will not be granted for the return or retention of personal property unless the property is peculiar or unique. See: Price v. Gordon, 129 Fla. 715, 177 So. 276 (Fla.1937); 17 Fla.Jur., Injunctions § 31. All three of these rules are neatly set forth by the court in First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla. 2d DCA 1963):

Basic to jurisdiction in equity is the rule that there must be a lack of an adequate remedy at law, and injunctive relief will not lie unless irreparable injury will result otherwise. Stoner v. South Peninsular Zoning Commission, (Fla.1954) 75 So.2d 831; 17 Fla.Jur. Injunctions sections 17 and 77, pages 385 and 433. The injury must be of a peculiar nature, so that compensation in money cannot atone for it; or, as the rule has been otherwise .stated, it must be of such a nature that it cannot be redressed in a court of law. Indian River Steam-Boat Co. v. East Coast Transp. Co., 1891, 28 Fla. 387, 10 So. 480, 487; Egan v. City of Miami, 1938, 130 Fla. 465, 178 So. 132. Thus, generally, equity will not injunctively command return of personal property unless it is of peculiar value and character and unless its loss or retention by one not entitled to it cannot be fully compensated in damages. Price v. Gordon, 1937, 129 Fla. 715, 177 So. 276; 17 Fla.Jur. Injunctions, section 31, page 393.
* # * * * *
A complainant, in alleging irreparable injury, must state facts which will enable the court to judge whether the injury will in fact be irreparable, and mere general allegations of irreparable injury will not suffice. Williams v. Dormany, 1930, 99 Fla. 496, 126 So. 117; Davis v. Wilson, 1939, 139 Fla. 698, 190 So. 716; Stoner v. South Peninsular Zoning Commission, supra. The facts comprising such injury must be presented clearly so that the court may determine the exact nature and extent of the possible injury. Charlotte Harbor & N. R. Co. v. Lancaster, 1915, 70 Fla. 200, 69 So. 720; Egan v. City of Miami, supra. If the injury complained of is doubtful, eventual, or contingent, injunctive relief will not be afforded. Shivery v. Streeper, 1888, 24 Fla. 103, 3 So. 865.
In testing the complaint to see if it can withstand a motion to dismiss for failure to state a cause of action for injunctive relief, the well-pleaded facts are admitted, but not conclusions of law or the opinions of the pleader. American Can Co. v. City of Tampa, 1943, 152 Fla. 798, 14 So.2d 203; Wallace Bros. v. Yates, Fla.App.1960, 117 So.2d 202. Rather, there must be something more than this in order for a court to intervene by injunction. American Fire & Gas Co. v. Rader, 1948, 160 Fla. 700, 36 So.2d 270.

For the foregoing reasons we must reverse the granting of the preliminary injunction.

With the hope of assisting in the ultimate disposition of the case upon remand, we note that, while this non-final appeal was pending from the unsuperseded three orders in question, the trial court proceeded to final hearing and entered a final judgment on June 11,1982. The court found in favor of appellee and directed sale of the boat and disposition of the proceeds as prayed for by appellee. That judgment is, of course, a nullity, Waltham A. Condominium Association v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976). While the trial court had jurisdiction to proceed with the case pending disposition of the non-final appeal, proceeding to final judgment and disposition of the cause had the effect of usurping the jurisdiction of this court. This may all sound like legal gobbledegook to some since, upon remand, the trial judge can be expected to re-enter a similar final judgment. We concede that may be true, but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.

Accordingly, we reverse the order appealed from granting and maintaining the preliminary injunction and remand the cause to the trial court to proceed to final determination of the cause.

REVERSED AND REMANDED, with directions.

GLICKSTEIN and DELL, JJ., concur.

      . Upon entry of the final judgment, appellant moved the court to stay said judgment while this appeal was pending. We granted that stay order. Almost simultaneously appellee asked us to dismiss the appeal as moot! The latter motion was denied.

      . Rule of Appellate Procedure 9.130(f) also requires this result.


author: OTT, Chief Judge.

text:
    Dana Lamar NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2396.
    District Court of Appeal of Florida, Second District.
    July 14, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Dana Lamar Nelson appeals his conviction for second degree murder, contending that the prosecutor violated his constitutional right to remain silent by commenting on his failure to make an exculpatory statement prior to trial. We disagree and affirm.

Nelson, employed as a bartender at the Manhattan Bar in St. Petersburg, shot and killed Alton Harden during a dispute arising out of the sale by Harden to Nelson of a toy pistol which Harden represented at the time of sale as being real. From the time of the shooting until his trial, Nelson gave no statements about the incident. At trial, he testified on direct, describing the shooting as accidental and partly motivated by self-defense.

The prosecutor cross-examined Nelson as follows:

PROSECUTOR: You told Mr. Eide ... on direct examination that you were going to leave the bar because no one would believe what your testimony was here today, is that correct?
APPELLANT: Yes, sir.
PROSECUTOR: And is that the reason you told no one on the incident of the shooting, the night of the shooting, knowing full well that a man is dead, is that the reason you never say anything until you come to court today, because you don’t think anyone would believe ....
DEFENSE COUNSEL: I’m going to object and ask to approach the bench. [The following were in lowered tones at the bench.]
DEFENSE COUNSEL: I would object as being a comment, direct comment, on the defendant’s right to remain silent. He mentioned, “You didn’t tell anyone until you came in here today;” that’s a direct comment. I move for mistrial based on that.
PROSECUTOR: If you take it in context, I was talking about civilian witnesses, and that’s exactly what I meant. The right to talk to civilian witnesses is not a violation of any Miranda rights.
DEFENSE COUNSEL: The jury didn’t understand it that way, and what he meant and what was understood by the jury are two different things, your Hon- or.
THE COURT: I will deny the motion for mistrial. I would suggest and direct the State to not pursue that particular question.

The right to remain silent has historically received strict protection in our state. Simpson v. State, No. 49,681 (Fla., filed April 8, 1982); Willinsky v. State, 360 So.2d 760 (Fla.1978); Bennett v. State, 316 So.2d 41 (Fla.1975); Simmons v. State, 139 Fla. 645, 190 So. 756 (1939). However, a prosecutor’s remarks must always be examined with an eye to the context in which they appear. State v. Jones, 204 So.2d 515 (Fla.1967); Jackson v. State, 328 So.2d 576 (Fla. 3d DCA 1976); Duval v. State, 190 So.2d 613 (Fla. 3d DCA 1966). As the fifth circuit noted in United States v. Forrest, 620 F.2d 446, 455-56 (5th Cir. 1980):

[Statements that might appear improper when considered in a vacuum may be found permissible when examined in context.

On direct examination, Nelson said he considered leaving the bar after the incident since he did not think anyone would believe his version of the shooting. The prosecutor’s remarks on cross-examination were directed not to Nelson’s failure to explain himself to police, but instead to his failure to talk to other civilian patrons in the bar immediately following the shooting. Viewed in this context, the prosecutor’s remarks were not fairly susceptible of interpretation by the jury as a comment on Nelson’s right to remain silent. David v. State, 369 So.2d 943 (Fla.1979). Accordingly, the trial court did not err in denying the motion for mistrial and Nelson’s conviction and sentence is AFFIRMED.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    CLAY HYDER TRUCKING, Appellant, v. Wilma PERSINGER, Appellee.
    No. AE-283.
    District Court of Appeal of Florida, First District.
    July 14, 1982.

      Bernard J. Zimmerman of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    Thomas Cassidy of Stanley, Wines & Smith, Lakeland, for appellee.
   PER CURIAM.

The self-insured employer appeals a workers’ compensation order, contesting the award of § 440.15(3)(b), wage-loss benefits. We conclude that the deputy commissioner did not err in awarding such benefits, and we affirm the order appealed.

The employer asserts that the deputy erred by predicating the wage-loss award on a disability rating not explicitly stated to be in conformity with the AMA Guides to the Evaluation of Permanent Impairment (1977). Section 440.15(3)(a)3, Florida Statutes, provides that the AMA Guides shall serve as a temporary schedule for determining the existence and degree of permanent impairment. The employer did not present this issue before the deputy, either before, during, or after the hearing, and therefore should not now be heard to complain on this point. See Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); also see Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

The employer also questions claimant’s inability to return to her former employment as a truck driver, or to find alternative employment, during the period for which wage-loss benefits were awarded. The argument on this point is essentially one of competent substantial evidence, and the record presents numerous issues as to credibility and weight of the evidence, which issues can properly be resolved only by the deputy commissioner. See Grillo v. Big B Ranch, 328 So.2d 429 (Fla.1976). Indeed, the adequacy of a claimant’s work search is itself a factual issue within the ambit of the deputy’s fact-finding authority, and the deputy’s conclusion in this regard will be upheld if the record provides any competent substantial evidence in support thereof. Because the record in the present case does contain such evidence, we conclude that the employer has failed to demonstrate error.

Accordingly, the order appealed is affirmed.

ERVIN and SHIVERS, JJ., concur.

WENTWORTH, J., concurs with opinion.

WENTWORTH, Judge,

concurring.

I agree entirely with the majority opinion but would also conclude that the substance of the medical evidence in the present case satisfies the statutory standards, considering the physician’s precise description of physical and functional conditions substantiated during and after claimant’s orthopedic surgery for her fractured foot. The evidence leaves room for no serious question as to the existence of some degree of permanent impairment, by any standard, and the employer provides no contrary analysis of the medical testimony to show insufficiency of the proof of impairment under the Guides.

      . Compare Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981), with Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981). As in Snead, the award in the present case is not dependent on a specific degree of impairment; wage-loss benefits are awardable upon the existence of “any permanent impairment” [e.s.]. See § 440.15(3)(b)1.

      . E.g., claimant’s physician testified at one point that it would “probably take several months before she rehabilitates herself back to the rigors of truck driving,” while at another point indicating that claimant could perhaps return to such work by “circumvent[ing] the use of the clutch through proper r. p. m.’s of the engine.”


author: SHIVERS, Judge.

text:
    RICH INTERNATIONAL AIRWAYS, INC., and Hartford Insurance Company, Appellants, v. Luis CAHVASQUIS, Appellee.
    No. AF — 46.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellants.
    Mark J. Feldman, Miami, for appellee.
   SHIVERS, Judge.

The employer/carrier appeal the deputy commissioner’s workers’ compensation order awarding Cahvasquis costs of nursing services and attorney’s fee. We modify the award for nursing services and the award of attorney’s fee and affirm the order as modified.

On December 10, 1979, Cahvasquis suffered an industrial injury during the course and scope of his employment. Following the injury, appellee entered the hospital where he remained until December 14,1979. Although Cahvasquis made a timely request for nursing services, the carrier refused payment. Several days after he left the hospital, Cahvasquis’ wife arrived from New York and treated his injuries for 15 days. Thereafter, appellee cared for himself. On July 2, 1981, the deputy commissioner entered an order awarding Cahvas-quis costs of nursing services for four weeks, costs of proceedings and attorney’s fee.

Section 440.13, Fla.Stat. (1979) provides for payment by the employer of fees for nursing services. When a spouse provides services which go beyond that which would normally be provided on a gratuitous basis, benefits for nursing services may be awarded. Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980). The record provides an adequate basis for the award for the fifteen days the wife cared for the claimant. The record, however, indicates the claimant cared for himself before the wife arrived and after she left. Although Section 440.-13(1) provides for an award if the employer refuses to pay and the employee personally expends money for nursing services, the statute does not provide for the payment of benefits for nursing services for the time during which the claimant cared for himself. Accordingly, the award was inappropriate to the extent it granted benefits for nursing services beyond fifteen days. The order below is modified to grant appellee $1,200 for nursing services reflecting costs of these services at the rate accepted by the deputy commissioner. The award of an attorney’s fee is justified by the record [Landers Construction v. Delauder, 417 So.2d 989 (Fla. 1st DCA 1981); Section 440.34(2) (a), Fla.Stat. (1979)], but not to the extent, if any, that the deputy commissioner considered the cost of unwarranted nursing services. Accordingly, the order is REVERSED in part and REMANDED for reconsideration of assessment of attorney’s fee. The remainder of the order is AFFIRMED as modified.

McCORD and JOANOS, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and Division of Risk Management, Appellants, v. Linda G. WATERS, Appellee.
    No. AI-294.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Ted R. Manry III and James C. Delesie, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    W. James Kelly, Lakeland, for appellee.
   PER CURIAM.

The employer/carrier seeks to appeal a workers’ compensation order finding claimant sustained a compensable accident but reserving jurisdiction to determine her entitlement to benefits. We are without jurisdiction to review this nonfinal order. See Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982). The appeal is therefore dismissed sua sponte, without prejudice to review of the order in the event of an appeal from a final order awarding benefits.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    OSCEOLA COUNTY COMMISSIONERS and U. S. Fidelity and Guaranty Company, Appellants, v. Enos THOMAS, Appellee.
    No. AI-316.
    District Court of Appeal of Florida, First District.
    July 14, 1982.

      John R. Gierach, of Gierach & Ewald, Orlando, for appellants.
    Irvin A. Meyers, of Meyers, Mooney, Adler & Hammon, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding wage loss benefits, interest, penalties, and attorney’s fees. The award was predicated on one medical report stating that claimant had “reached MMI and has a PPI of 2% of the body as a whole” resulting from his June 27, 1980, industrial accident. We reverse, as the report was inadmissible hearsay, see Butch’s Concrete v. Henderson, 414 So.2d 652 (Fla. 1st DCA 1982), and there was no other medical testimony establishing permanent impairment and entitlement to wage loss benefits. The finding that claimant was entitled to attorney’s fees was also improper absent a specific finding of the basis for such award in the order. See Blackburn Home Improvements v. Lebel, 414 So.2d 12 (Fla. 1st DCA 1982).

REVERSED.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Shannon Clayton SAXON, Appellant, v. STATE of Florida, Appellee.
    No. AJ-441.
    District Court of Appeal of Florida, First District.
    July 14, 1982.

      Shannon Clayton Saxon, pro se.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This cause is before us on appeal from the trial court’s order denying Saxon’s petition for an “Amended, Writ of Habeas Corpus, Ad Subjiciendum.” The trial court treated the petition as essentially an “amended motion for dismissal for failure to grant a speedy trial,” and denied the “motion” because Saxon refused to waive extradition and was therefore unavailable for trial. Pla.R.Crim.P. 3.191(b)(1) and (c). We reverse.

The facts as distilled from the record trace Saxon’s rather active criminal history back to March 14, 1977, on which date he was arrested in Escambia County, Florida and charged with twelve counts of making forged instruments; ten counts of uttering forged instruments; one count of armed robbery; two counts of conspiracy to commit armed robbery; two counts of burglary; and two counts of criminal mischief. Saxon jumped bond but was again arrested on July 11,1977, in Louisiana for attempted armed robbery.

The record shows that Florida originally intended to extradite Saxon; that Saxon refused to waive his right to the statutory extradition procedure; and that in September, 1977, due to inaction on the part of this State as the demanding state, the district court in Louisiana dismissed the extradition warrant.

Subsequently, in October, 1977, Saxon was sentenced to four years incarceration in Louisiana. In November of that same year, he sent a letter to the State Attorney’s office in Escambia County requesting final disposition of the pending charges pursuant to Section 941.45(3)(a), Florida Statutes. No reply was received.

Approximately sixteen months later, on March 8, 1979, Saxon filed, in Escambia County, a motion for speedy trial. By letter dated March 22, 1979, the Assistant State Attorney advised Saxon that his demand for speedy trial was faulty because he had failed to comply with Rule 3.191(b)(3), Florida Rules of Criminal Procedure (1979). Saxon supplemented his demand by letter dated April 2, 1979, in which was contained the necessary information. However, on June 5, 1979, the Assistant State Attorney informed Saxon that his speedy trial demand would not be acted upon because he had refused to waive extradition.

On October 11, 1979, undaunted, Saxon filed a motion to dismiss the pending charges, based on the allegation that he had been denied a speedy trial. By order dated October 12, 1979, the circuit court for Es-cambia County denied the motion to dismiss on the grounds that, (1) Saxon had refused to waive extradition, and (2) he had not been continuously available for return to that jurisdiction for trial.

In November, 1979, pursuant to a detain-er, Saxon was released to and incarcerated in Jackson, Mississippi. By December, 1981, however, he had abandoned his motions in favor of petitions for writs of habeas corpus. The first of these petitions was denied by order dated December 16, 1981, wherein the trial court noted that a prior motion for dismissal on the same grounds had been denied by the October 15, 1979 order. The basis of the December order was that Saxon had not been continuously available for trial because of his refusal to waive extradition, and further that he had failed to utilize the appropriate provisions of the Interstate Agreement on Detainers Act, Section 941.45, et seq., Florida Statutes.

Nevertheless, on December 28, 1981, exhibiting tremendous tenacity, Saxon again filed what was styled an “Amended, Motion for Writ of Habeas Corpus, Ad Subjicien-dum.” Again, the trial court, treating the pleading as an amended motion for dismissal, denied same by order dated January 28, 1982, which order became the subject of the present appeal.

The crux of Saxon’s argument is that he was at all times available for trial, especially by his filing motions for a speedy trial or, alternatively, by his original effort to invoke the provisions of the Interstate Agreement on Detainers Act in his November, 1977 letter.

Although Saxon’s efforts over the past five years have wreaked havoc on the orderly processes set forth in Section 941.45, Florida Statutes, and Rule 3.191, Florida Rules of Criminal Procedure, through which an accused may obtain a speedy trial, it is clear from the record that subsequent to his refusal to waive extradition in 1977, he has made a genuine effort to secure a speedy trial.

The trial court, in its denial of Saxon’s many motions and petitions, misconstrued his initial refusal to waive extradition. It would appear that his refusal was predicated on his understanding that Florida intended to pursue extradition proceedings. However, Florida failed to do so, and Saxon’s positive actions thereafter amounted to a bona fide waiver of extradition.

However, in order that Saxon’s position in that regard be made clear on the record, it is this Court’s decision that he file a certificate of waiver of extradition in Es-cambia County. The certificate, coupled with his previous demands for a speedy trial would require Escambia County to return Saxon to that county for trial within sixty days. Fla.R.Crim.P. 3.191(a)(2) (1982). Failing that return, the charges pending against Saxon in Escambia County should be dismissed.

BOOTH and WENTWORTH, JJ., concur.


author: JOANOS, Judge.

text:
    Dwain BUFFKIN, Appellant, v. STATE of Florida, Appellee.
    No. AL-287.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Dwain Buffkin, pro se.
    No appearance for appellee.
   JOANOS, Judge.

Buffkin appeals from the trial court’s denial of his motion for post-conviction relief. We affirm.

The speedy-trial issue raised in the petition was previously raised on direct appeal in Case No. UU-96 which we affirmed at 394 So.2d 1154 (Fla. 1st DCA 1981). It is therefore not a proper issue for post-conviction relief.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    A. D. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 81-1703.
    District Court of Appeal of Florida, Second District.
    July 16, 1982.

      Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Appellant, a juvenile, was charged by petition. The sole allegation was grand theft in the second degree. § 812.014, Fla.Stat. (1981). The appellant was acquitted of the theft charge at his adjudicatory hearing; however, he was found guilty of obstructing without violence as a lesser-included offense. § 843.02, Fla.Stat. (1981). We reverse.

Although the full panoply of constitutional rights afforded an “adult” in a criminal trial is not conversely applicable in delinquency cases, State v. D. H., 340 So.2d 1163 (Fla.1976), a juvenile is not. subject to adjudication proceedings absent written notice permitting an adequate time period in which to prepare a defense. In Re: Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Furthermore, in fairly viewing lesser-included offenses, we cannot categorize obstructing without violence as a lesser-included offense of grand theft. See In Re: Use of the Trial Courts of the Standard Jury Instructions in Criminal Cases, Nos. 57,731 and 58,799 (Fla., filed April 16, 1981). Therefore, since grand theft was the sole allegation presented here, the accused could not logically have anticipated, nor prepared for, a charge of obstructing without violence.

To subject the appellant here to delinquency proceedings which could perchance result in his loss of liberty without initially affording him his basic due process right of notice constitutes error, which, in the interest of justice, warrants remedy.

Accordingly, the order adjudicating this appellant delinquent is REVERSED.

HOBSON and BOARDMAN, JJ., concur.


text:
    Richard WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1945.
    District Court of Appeal of Florida, Second District.
    July 16, 1982.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Richard Whitfield, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find that the appellant has failed to demonstrate reversible error; therefore, the judgment and sentence appealed from are affirmed.

However, we remand this case to the trial court to correct an imperfection in the judgment. Natkie v. State, 367 So.2d 1121 (Fla. 1st DCA 1979). The appellant here was charged, tried by jury, and a verdict returned finding appellant guilty of robbery with a deadly weapon. Thereafter, the trial court entered its judgment on the jury verdict, but erroneously recited therein that the appellant was guilty of “robbery” only, while imposing a sentence permissible only for robbery with a deadly weapon. The judgment must clearly recite such to substantiate the imposition of appellant’s 45-year term of imprisonment. § 812.-13(2)(a), Fla.Stat. (1979). A conviction of “robbery,” on the other hand, carries a maximum term of 15 years’ imprisonment. § 812.13(2)(c), Fla.Stat. (1979).

REMANDED for correction of the judgment; otherwise AFFIRMED. Appellant need not be present for this purpose.

OTT, C. J., and HOBSON and BOARD-MAN, JJ., concur.


text:
    George V. HOURIHAN and Katrina A. Hourihan, Appellants, v. GROSSMAN HOLDINGS LIMITED, Bleeman Holdings Limited, the Meridian Group Limited and Markborough Properties Limited, Appellees.
    No. 80-670.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Wilson E. Hodge, Homestead, for appellants.

      Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff, and Alan T. Dimond and Rudolph F. Aragon, Miami, for appel-lees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 24, 1981, (396 So.2d 753) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida, in the above styled appeal, and

WHEREAS, on review of this court’s judgment; by certiorari, the Supreme Court of Florida, 414 So.2d 1037, by its opinion and judgment filed April 15, 1982 and mandate now lodged in this court affirmed the results of this court’s judgment, but, for the reasons expressed, the opinion is affirmed in part and disapproved in part.

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause May 15, 1981 is withdrawn, the opinion and judgment of this court filed March 24, 1981 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the trial court (Rule 9.400 a, Florida Rules of Appellate Procedure).


text:
    Daniel Sherman SCHAEFFER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1074.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982).

ORFINGER, C. J., and SHARP and CO-WART, JJ., concur.


author: DANAHY, Judge.

text:
    WINDMILL RESTAURANT SYSTEMS, INC., a dissolved corporation, and Richard Rolfe, individually, Appellants, v. C & W LIMITED, Appellee.
    No. 81-2405.
    District Court of Appeal of Florida, Second District.
    July 21, 1982.

      Richard L. Watkins, Fort Myers, for appellants.
    Bruce D. Frankel of Goldberg, Ruben-stein & Buckley, Fort Myers, for appellee.
   DANAHY, Judge.

The defendants appeal an order denying their motion to set aside a default judgment entered against them in this action. We affirm as to Richard Rolfe, the individual defendant, but reverse as to Windmill Restaurant Systems, Inc., described in the pleadings as a dissolved corporation.

The dissolved corporate defendant may be amenable to a suit against it in its corporate name. § 607.297, Fla.Stat. (1981). The record, however, shows that summons was served only on Richard Rolfe, individually. No summons was issued to nor served upon Windmill Restaurant Systems, Inc. Accordingly, the default judgment entered against Windmill Restaurant Systems, Inc., is void and that defendant is entitled to relief from the judgment under rule 1.540, Florida Rules of Civil Procedure. Vias Del Austro Compania Limitada v. O. E. Miami Corp., 415 So.2d 107 (Fla. 3d DCA 1982).

AFFIRMED in part and REVERSED in part.

RYDER, A. C. J., and SCHOONOVER, J., concur.


author: COBB, Judge.

text:
    William MITCHELL, as personal representative of the Estate of Annabelle Mitchell, deceased, and William Mitchell, individually, Appellant, v. Maria S. ANGULO, M.D., Appellee.
    No. 81-1495.
    District Court of Appeal Florida, Fifth District.
    July 14, 1982.

      James P. Kelaher of Law Offices of Nolan Carter, P.A., Orlando, for appellant.
    Ronald L. Harrop of Gurney, Gurney & Handley, P.A., Orlando, for appellee.
   COBB, Judge.

The issue in this case is whether the trial court erred by construing section 768.45, Florida Statutes (1981), to prohibit testimony from appellant’s proposed “similar health care provider.” We hold it did and reverse.

In March, 1980, appellant William Mitchell, as personal representative of the estate of his deceased wife, filed a complaint alleging malpractice on the part of appellee, Maria S. Angulo, M.D., which resulted in the death of his wife.

On October 14, 1981, the trial court, finding that the appellant’s proposed expert, Stephen Van Ore, M.D., was not “a similar health care provider” under section 768.45, Florida Statutes (1981), granted appellee’s motion to strike. Since Dr. Van Ore was the only expert the appellant had, the court entered a summary judgment for the appellee based on Reynolds v. Burt, 359 So.2d 50 (Fla. 1st DCA 1978), and the need for expert testimony in the case, as agreed on by both parties.

Mitchell filed a motion for rehearing on October 23, 1981, claiming that the ruling on the motion to strike the expert was contrary to the evidence in the case and to the laws of the State of Florida. The appellant also raised for the first time the claim that section 768.45 was unconstitutional.

On November 17, 1981, the trial judge denied the petition for rehearing and expressly declined to pass on the constitutionality of section 768.45, since the constitutional issue was not previously raised. From this dismissal, appellant filed his notice of appeal.

By the briefs of the parties and the objections made by the appellee’s attorney at Dr. Van Ore’s deposition, it can be seen that the basis for the granting of the motion to strike the expert and the subsequent summary judgment was the belief of the defendant and of the trial court that the proposed expert was not a “similar health care provider,” since he was in fact overly qualified.

Although both Dr. Van Ore and Dr. An-gulo are licensed to practice medicine in Florida, Dr. Van Ore is board certified by the American Board of Family Practice, whereas Dr. Angulo is not certified in any area. Additionally, the medical training of the two doctors is different. Dr. Angulo received her medical degree from a University in Spain; had one year of a rotating internship at Pope General Hospital in pediatrics and medicine; then worked as a pediatric house physician at Orange Memorial Hospital in Orlando for three months. Dr. Angulo then took the Florida license exam in 1976, and began her private practice shortly thereafter. Dr. Van Ore graduated from the University of Miami, did a year’s residency in internal medicine and a year’s intership as well. He has been in practice since 1972, and has been board certified in family practice since June, 1977. Dr. Van Ore is on the staff of three hospitals in the Orlando area.

While acknowledging some differences in his credentials, particularly the board certification, Dr. Van Ore did point out in his deposition that he was in practice for five years before certification as was the defendant, and was familiar with what someone in that position should do.

Appellant claims that the trial court erred by finding that Dr. Van Ore was not a similar health care provider as per section 768.45, Florida Statutes (1981). The statute distinguishes between those health care providers who are board certified and those who are not, and defines a “similar health care provider” for each as follows:

(2)(a) If the health care provider whose negligence is claimed to have created the cause of action is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a “similar health care provider” is one who:
1. Is licensed by the appropriate regulatory agency of this state;
2. Is trained and experienced in the same discipline or school of practice; and
3. Practices in the same or similar medical community.
(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who:
1. Is trained and experienced in the same specialty; and
2. Is certified by the appropriate American board in the same specialty.

Since the language of sub-section (2)(a) speaks of the health care provider “whose negligence is claimed to have created the cause of action,” the fact that a witness is a specialist and the defendant is not should not invalidate his testimony. In this case, Dr. Van Ore clearly qualifies as to each of the three conditions set forth in sub-section (2)(a), since he is clearly licensed, trained and experienced in the same discipline, and practices in the same or similar medical community. The trial court erred by not allowing Dr. Van Ore to testify since he does fall within the definition of “similar health care provider” under the statute.

In reading the statute, one can see that even if a person is not a “similar health care provider” under sub-sections (a) and (b), they may still qualify to testify under subsection (c). That section reads as follows:

The purpose of this sub-section is to establish a relative standard of care for various categories and classifications of health care providers. Any health care provider may testify as an expert in any action if he:
1. Is a “similar health care provider” pursuant to paragraph (a) or (b); or,
2. Is not a similar health care provider pursuant to paragraph (a) or (b) but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge to provide such expert testimony as to the acceptable standard of care in a given cause.

For the court to determine if a witness is qualified, it must be shown that they possess sufficient training, etc., to provide expert testimony as to the acceptable standard of care to which the defendant health care provider is made subject under the statute. It is improper for the court to refuse to allow testimony merely because a proposed witness is not a “similar health care provider”; rather, the court must make the determination that the proffered witness does not possess the training, experience, or knowledge to testify on the standard of care for the alleged acts in question. Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981); Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981). It is not enough to rely solely on the fact that a proffered witness does not practice the same specialty, since even one in a different specialty may be competent to testify as to some matters, although not competent to testify as to others. 396 So.2d at 1125. Since the test is sufficient training, it is really a question of minimum standards as to whether a witness may testify or not. This reading is supported by pre-statutory case law where doctors whose competency in certain areas was shown to meet the level of sufficiency were allowed to testify.

Here it is abundantly clear that the trial court made no determination as to whether Dr. Van Ore possessed the sufficient minimum training and experience to allow him to testify, despite the court seeing him as not being a “similar health care provider.” The court, in fact, admitted that the doctor was overqualified, clearly showing that it failed to apply the proper test as to whether the expert should be allowed to testify or not. Thus, the trial court committed reversible error in not allowing the testimony, as the proffered witness was indeed a “similar health care provider” under the statute, and even if it could be said that he was not, he still possessed the minimum standards required to allow him to testify. In view of this holding, we need not reach the constitutional questions presented.

The summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ., concur.

      . See Hawkins v. Schofman, 204 So.2d 336 (Fla. 3d DCA 1967), cert. denied, 211 So.2d 215 (Fla.1968) (even though doctor had no personal experience in performing questioned operation, court saw him as competent in view of medical training and professional knowledge); Ashburn v. Fox, 233 So.2d 840 (Fla. 3d DCA), cert. granted, 238 So.2d 428 (Fla.1970), cert. dismissed, 242 So.2d 873 (Fla.1971) (testimony of m.d.’s allowed despite the fact that defendant was osteopath, since the point in question concerned area of knowledge common to both fields).


text:
    STATE of Louisiana v. Hilton WILLIAMS & Terry Barnes.
    No. 81-KA-2912.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, Jr., Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Edward J. Lopez, Opelousas, for Hilton Williams.
    Robert F. DeJean, Jr., Opelousas, for Terry Barnes.
   H. CHARLES GAUDIN, Justice Pro Tem.

Appellants Hilton Williams and Terry Barnes were jointly charged with the crime of attempted second degree murder. They were tried before a 12-person jury, which unanimously found both defendants guilty of aggravated battery.

Williams was sentenced to five years at hard labor while Barnes received eight' years.

They are before this Court with two identical assignments of error:

(1) That they should have been granted a severance and tried separately; and

(2) That the trial court erred in admitting an oral inculpatory statement made by Williams to an investigating police officer.

We cannot agree with either contention.

ASSIGNMENT OF ERROR NO. 1

After selection of the jury but prior to opening statements, both defendants filed motions to sever, alleging antagonistic defenses.

LSA-C.Cr.P. Art. 704 provides:

“Jointly indicted defendants shall be tried jointly unless:
(1) The State elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.”

The trial judge held a severance hearing, during which four witnesses testified. They were Johnny Edmunds, as eyewitness to the altercation between appellants and the victim; both attorneys, Edward Lopez for Williams and Robert Dejean for Barnes; and Williams.

Each attorney said that his client blamed the other defendant for the injuries inflicted on Kenneth Johnson. The bill of information charged Williams and Barnes with an attempt to murder Johnson “... in the second degree.”

Edmunds described a confrontation between Williams and Johnson that started in an Opelousas lounge. After being cut in the hand by Johnson, Williams armed himself with “... a piece of plank ...” and started chasing Johnson, with Barnes also in pursuit. Barnes had “... picked up two bricks in front of the nightclub and ran behind Mr. Williams ...”

Finally, Johnson stopped and “... had his knife out again, and he was jabbing at Williams ...” while Williams “... was swinging the plank at him ... Barnes then cut across the yard with a brick in his hands, and he threw the brick, and the brick caught Mr. Johnson ... he just spun around and he dropped.”

While Johnson was on the ground, Barnes struck him again with a brick.

Before the chase started, Williams said, he had thrown a brick at Johnson and it had “... glanced him on the shoulder.”

At a motion to sever, the burden is on the defendants to satisfy the trial judge that “. . . justice requires a severance.” Mere allegations will not suffice.

In a sense, Williams’ defense is antagonistic to Barnes’, and vice versa, inasmuch as each pointed a finger at the other, but this does not make the defenses automatically antagonistic. Prejudice must be shown if the defendants are to receive separate trials.

This Court, in State v. Simmons, 381 So.2d 803, stated:

“While the confessions of these defendants do purport to shift the blame for the shooting to the other, the defenses are not by reasons thereof rendered antagonistic. Both confessions involve both defendants as principals. Only the extent of participation is contradictory. The degree of blame each seeks to cast upon the other does not suffice to warrant severance.”

In State v. McGraw, 366 So.2d 1278 (La.1978), this Court discussed fully and in historical detail the problems related to antagonistic defenses, beginning with the first reported case reversing a conviction because a severance was denied.

Neither Art. 704 nor its predecessor article provides the trial judge with a precise standard with which to exercise his authority, but a series of cases have developed the so-called “antagonistic defenses” test which, if and when satisfied, would require a severance. To meet the test, a defendant must show that a joint trial would be prejudicial to his interests.

Here, neither Williams nor Barnes could convince the trial judge of any possible prejudice, and the motions to sever were denied.

The trial judge’s granting or denial of a severance rests in his sound discretion; and absent a showing of clear abuse, his ruling will not be reversed. See State v. Jenkins, 340 So.2d 157 (La.1979), cited favorably in State v. Whitt, 404 So.2d 254 (1981).

Considering the testimony taken at the motion to sever, it is clear that the trial judge’s denial was not abusive.

Looking back at the trial itself, it is difficult to visualize prejudice to either defendant. The majority of the testimony involves both Williams and/or Barnes; only the extent of participation is occasionally contradictory.

The evidence overwhelmingly supports the verdicts apart from the testimony by appellants; and even in retrospect, neither Williams nor Barnes can demonstrate that he would not have been convicted had he been granted a separate trial.

It should be noted that a policy consideration implicit in Art. 704 situations is the reasonableness of presenting the entire case at one time.

From State v. Bradford, supra:

“Where a crime involves more than one actor, the need arises to balance the interest of the State in trial economy against the rights of defendants to separate trials. Joinder expedites the administration of justice, reduces the congestion of the trial dockets, conserves judicial time, lessens the burdens upon citizens who must sacrifice both time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.”

ASSIGNMENT OF ERROR NO. 2

Defendants allege that the trial court erred in admitting into evidence an inculpa-tory statement made by Williams to a policeman without the State providing prior written notice.

LSA-C.Cr.P. Art. 768 reads:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

Approximately three weeks in advance of trial, written notice of the intent to use Williams’ statement was mistakenly sent to Barnes’ counsel. On the day before opening statements, a hearing was conducted on the voluntariness of both defendants’ statements to the police officer, and Williams’ statement was found to be voluntary.

At trial, the State offered the statement into evidence and it was received over objection by Williams.

In State v, Sneed, 316 So.2d 372 (La.1975), this Court held that even in the absence of the written notice required by Art. 768, a defendant is not prejudiced by the admission of statements if he has had actual notice by other means. The hearing on the free and voluntary nature of defendant’s statement, just as a hearing on a motion to suppress, affords adequate compliance with the notice requirements of Art. 768. Accordingly, Williams and Barnes were not taken by surprise nor were they in any way prejudiced by the trial court’s admission of the statement.

Finally, even if the admission of the in-culpatory statement was without prior written notice, the evidence of both defendants’ guilt was so strong that the failure to meet the Art. 768 requirement constituted harmless error, as in State v. Smith, 401 So.2d 1179 (1981).

This assignment of error, like the first, lacks merit and we affirm the convictions.

       Judge H. Charles Guadin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-R.S. 14:27, 14:30.1.

      . Verdicts responsive to attempted second degree murder are: (a) Guilty, (b) Guilty of attempted manslaughter, (c) Guilty of aggravated battery and (d) Not guilty.

        .State v. Bradbury, 367 So.2d 745 (La.1978).

      . State v. Desroche, 47 La.Ann. 651, 17 So. 209 (1895).

      . Article 316 of the 1928 Code of Criminal Procedure.


text:
    STATE of Louisiana ex rel. James LaGARDE, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2259.
    Supreme Court of Louisiana.
    June 30, 1982.
    Robert Glass, New Orleans, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty. for respondent.
   PER CURIAM.

On November 19, 1974, a /iVe-member jury convicted relator James LaGarde of theft in the amount of $6000, a violation of La.R.S. 14:67. Thereafter, the trial court sentenced him as a second felony offender to twenty years’ imprisonment at hard labor. La.R.S. 15:529.1. Following this Court’s affirmance of his conviction and sentence, State v. LaGarde, 311 So.2d 890 (La.1975), relator filed an application for post-conviction relief, La.C.Cr.P. Art. 924 et seq., assailing the constitutionality of his trial before a five-member jury. Finding merit in this contention, we vacate the relator’s conviction and sentence and remand the case to the district court for further proceedings.

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the United States Supreme Court recognized that the reduction of jury size to five members or less “promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities.” Id. 98 S.Ct. at 1039. As a result of these findings, the Court concluded that a criminal trial before a jury consisting of only five members deprives the defendant of his right to trial by jury under the Sixth Amendment as applied to the states by the Fourteenth Amendment.

Because the major purpose of Ballew’s constitutional doctrine is to overcome an aspect of the criminal trial that “substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials,” Thomas v. Blackburn, 623 F.2d 383, 385 (5th Cir. 1980), cert. den., 450 U.S. 953, 101 S.Ct. 1413, 67 L.Ed.2d 380 (1981), this Court has given the new rule complete retroactive effect. State ex rel. Becnel v. Henderson, 410 So.2d 1015 (La.1982). Since relator’s petition falls squarely within the rule of Becnel, his trial before a five-member jury was unconstitutional and his conviction and sentence must be reversed.

CONVICTION AND SENTENCE REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH LAW.

MARCUS and LEMMON, JJ., dissent for reasons assigned in dissenting opinion in State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982).


author: LEMMON, Justice.

text:
    STATE of Louisiana In the Interest of Allen Louis WEATHERFORD, Jr.
    No. 81-K-1797.
    Supreme Court of Louisiana.
    July 2, 1982.
    Patrick W. Pendley, Freeman & Pendley, Ltd., Plaquemine, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Houston C. Gas-con, III, Dist. Atty., for plaintiffs-respondents.
   LEMMON, Justice.

This is a delinquency proceeding, in which the juvenile is charged as being delinquent for violation of R.S. 14:56 (Simple Criminal Damage to Property) and R.S. 14:102 (Cruelty to Animals), in that he shot a dog to death. The juvenile filed a motion to quash, alleging that the City Court of Plaquemine had no jurisdiction, because the offense was allegedly committed at a place outside the territorial jurisdiction of the court. The trial court denied the motion, and we granted the juvenile’s application for certiorari in order to review the correctness of that ruling. 404 So.2d 270.

For the reasons stated in Medlen, et al v. The State of Louisiana, et al, 418 So.2d 618 (La.1982) we hold that the City Court of Plaquemine is without jurisdiction to adjudicate the charged offense, which occurred outside the boundary of the City of Plaquemine.

Accordingly, the judgment of the trial court is reversed, the motion to quash is maintained, and the petition is dismissed.


author:
      WATSON, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Anna R. WATSON.
    No. 81-KA-2663.
    Supreme Court of Louisiana.
    July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William C. Credo, Stephen M. Little, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   WATSON, Justice.

Defendant, Anna R. Watson, pleaded guilty to possession of Preludin with intent to distribute in violation of LSA-R.S. 40:967. She reserved the right to appeal from the trial court’s adverse ruling on her motion to suppress the evidence. State v. Crosby, 338 So.2d 584 (La., 1976). The trial court sentenced defendant to three years with the Department of Corrections, suspended, and five years active probation. As conditions of probation, Anna Watson was ordered to serve six months in the Jefferson Parish Correctional Center and pay a fine of $2,000 plus costs.

Anna Watson is twenty-nine years old and has two years of college education. Her work history is scanty, consisting of one month at the beauty shop where she is now employed and four months at another one. She was convicted of possession of marijuana in 1977 and placed on one year inactive probation.

FACTS

On October 29, 1980, officer Farrell Whitehead and detective Gary Schwabe, both with the narcotics division of the Jefferson Parish Sheriff’s department, were on duty at New Orleans International Airport. About 8:30 A.M., the officers observed Reginald Broadnax, “Sleepy”, who had escaped surveillance at the airport on a previous occasion. Broadnax had approximately twelve felony arrests, five for narcotics, and four convictions. Broadnax met a woman arriving on a National Airlines’ flight from Los Angeles. The two did not shake hands or kiss but fell into step with each other. At the baggage claim area, the woman produced a baggage claim check for one small black suitcase which Broadnax carried for her. The two officers approached the cou-pie, stated that they were police officers, and asked for identification. Broadnax produced a driver’s license, but the woman had no identification, although she gave her name as Anna Watson. After consenting to have her suitcase searched for identification, Anna Watson also agreed to accompany the officers to an airport office where the search took place. Inside, in a white paper bag, there were seven hundred and fifty Preludin tablets, and sixty Talwin.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that she was seized when she was taken to the third floor security office, and there was no reason to believe that she had committed a crime at that point.

The evidence is that Anna Watson went willingly to the office. Since she was not coerced in any way, a reasonable person would have felt free to refuse. Therefore, Anna Watson was not seized when she went to the office. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Defendant contends that the search of the suitcase was illegal and that the search of the white paper bag exceeded the scope of any consent to search of the suitcase.

Anna Watson’s consent to the suitcase search was neither limited nor conditional and was not withdrawn prior to completion of the search. It is significant that there was no show of force, threats or claim that the police had a right to search the suitcase. Thus, the consent was fully voluntary. Compare Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) where the consent was coerced. Since defendant Watson is twenty-nine years old and has two years of college education, she was certainly capable of an informed and effective consent. Voluntariness is a question of fact to be determined from all of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Any identification was as likely to be in the paper bag as any where else in the suitcase. There was no reason for the police to believe that the consent to search the suitcase did not extend to the paper package inside. Having opened the paper bag, the police found contraband in plain view which they were entitled to seize.

The police may have slightly misstated their purpose, but the scope of the search was of no greater intensity than they represented they would make. Since Anna Watson had no identification, finding some was a legitimate element of the search.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

Defendant contends that the trial judge failed to comply with the sentencing criteria of LSA-C.Cr.P. art. 894.1 and that the sentence is excessive.

A sentence will be remanded for further articulation only if a review indicates that it appears to be excessive. Anna Watson had one year of inactive probation for a narcotics offense in 1977. Her present employment has lasted only one month and her only other employment lasted four months.

Since Anna Watson was previously given inactive probation for possession of marijuana, a sentence of six months in jail and active probation for five years is not apparently excessive.

These assignments lack merit.

For the foregoing reasons, the conviction and sentence of defendant, Anna R. Watson, are affirmed.

AFFIRMED.

CALOGERO, J., dissents and assigns reasons.

AUGUSTINE, J., dissents and will assign reasons.

CALOGERO, Justice,

dissenting.

I have reservations about the majority determination that this woman, under the circumstances of this case, was not under arrest (that her liberty was not restrained in a significant manner) after having been asked for identification, to open her luggage and to accompany police to their airport office. Faced with similar circumstances in State v. Coleman, 412 So.2d 532 (La.1982), this Court found that the defendants were under arrest. Furthermore, I believe that the scope of the search definitely exceeded the scope of the consent given.

For these reasons, I respectfully dissent.

       Judges Israel M. Augustine, Jr., and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Associate Justices Calogero, Dennis, Watson and Lem-mon.

      . "... Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officers request might be compelled.” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d 509 (1980).