author: TYSON, Judge. BOOKOUT, Judge, BOWEN, Judge,

text:
    Donald SNIPES v. STATE of Alabama.
    4 Div. 844.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
    Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The indictment charged Donald Snipes with the burglary of the dwelling house of James Lowery, Jr., while armed with a deadly weapon, a knife, and then fleeing therefrom following entry, contrary to § 13A-7-6 of the Code of Alabama 1975. The jury found the appellant “guilty of the lesser included offense of burglary in the third degree” and after conducting a separate sentencing hearing and obtaining evidence of certain prior burglaries, the appellant was sentenced to 26 years’ imprisonment.

On the morning of March 5, 1980, Denise and James Lowery locked and left their home at 1903 24th Street, Phenix City, Alabama at 7:45 a. m. and drove to Lummus Industries in Columbus, Georgia where both were employed. The couple left work at approximately 12 o’clock noon and returned to their home and as they were driving toward the front of the house both noticed a black male, dressed in a blue denim jean outfit with a blue denim hat, coming down their driveway carrying a red tote bag, which Mrs. Lowery recognized as her own. The couple turned into their driveway and noticed a large front window broken open. They then backed out of their driveway and began to follow the black male who had been observed moments before walking down their driveway. This individual was subsequently identified in open court by both Mr. and Mrs. Lowery as the appellant. Snipes, however, began to run, and ran through a field so that Mr. Lowery stopped at a Majik Mart where Mrs. Lowery telephoned police while Mr. Lowery continued to follow appellant in his car, circling the block, and moments later saw the appellant emerging from a wooded area approximately one-half mile from their home. He called to the appellant to wait, but appellant again disappeared. However, fifteen or twenty minutes later, after returning to their home, the appellant was brought to their residence by two Phenix City police officers where both Mr. and Mrs. Lowery positively identified him as the party they had seen run down their driveway with a red tote bag in his hand.

A number of items of jewelry such as rings, necklaces and bracelets were removed from the pockets of the appellant which were identified by Mr. and Mrs. Lowery as their property, and which had been in their home earlier that day when they left for work. A short time later another Phenix City police officer drove up and presented a red tote bag which Mrs. Lowery identified as hers. The tote bag contained a clock radio, a camera, a set of candle sticks and two wine goblets which were wedding presents belonging to the couple. The Low-erys identified these items as having been in their home when they left for work that morning, and that no one, including the appellant, had been given permission to enter therein. The officer stated that he found the red tote bag and the items therein in a field where the appellant had been observed running.

The appellant did not take the stand at trial or offer testimony from other witnesses.

I

The appellant first calls attention to a motion filed before trial wherein he had sought to obtain a preliminary hearing and cites this court to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Appellant’s counsel notes that this motion was filed after grand jury indictment and arraignment thereon, but was filed by counsel at his first opportunity and asserts as error the trial court’s denial of this motion. This issue has been determined adversely to appellant in an opinion written for this court by Judge Bookout as Duncan v. State, Ala.Cr.App., 369 So.2d 885 (1979), as follows:

“[1] The appellant’s remedy in a preliminary hearing would be dismissal of the charge if there is a lack of probable cause. The returning of an indictment is a finding that probable cause does exist. There is still no constitutional requirement in Alabama that there be two inquiries into probable cause. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965). Constitutionally, a preliminary hearing is not necessary to satisfy the requisites of due process, and the fact that there was no preliminary hearing in cases prior to the enactment of the statute in question has had no bearing on the validity of an indictment or subsequent proceedings. Scaife v. State, Ala.Cr.App., 337 So.2d 146 (1976).
“[2] While the appellant’s statutory right to a preliminary hearing may have been infringed in the instant case, we hold that no reversible error results where an indictment has been returned against the accused. It would be folly on the part of this court to reverse a case in order to require a repetitious inquiry into probable cause where such had already been determined by the grand jury. For this reason, we hold that any error committed by the trial court in not granting the appellant a preliminary hearing was harmless. Rule 45, Alabama Rules of Appellate Procedure.”

II

The appellant next calls attention to the closing argument of the district attorney (R 98-99) and contends that such constituted an indirect reference to the appellant’s failure to take the stand and testify.

The argument in question is as follows:

“(Mr. Collinsworth made the concluding argument to the jury in behalf of the State of Alabama, during which the following objection occurred, to-wit:)
“MR. COLLINSWORTH: * * * What explanation did you hear from him as to the jewelry being found in the defendant’s front pocket? What explanation did he have as to this nasty thing? What do you think this thing was on the defendant for, to clean his fingernails? He had it with him when he went in that house in case he needed it. Ladies and gentlemen, we’re lucky today that we are not prosecuting a murder or rape, it’s just a burglary today.
“MR. DAVENPORT: Objection, your Honor. That’s calculated to prejudice the jury. This is not a charge of murder or rape. And we would ask the Court to instruct the jury to disregard those remarks.
“THE COURT: Objection will be sustained. Ladies and gentlemen, you may disregard — you must disregard the last statement made by the district attorney. We are here today on a charge of burglary-
“MR. COLLINSWORTH: I’m sorry, your Honor.
“(Mr. Collinsworth concluded his argument to the jury without further objection.)”

At the outset it should be noted that the appellant was found in possession of two knives in his clothing at the time of his arrest by the Phenix City police officers. The two knives were placed in evidence at trial, one of which belonged to Mr. Lowery, and the owner of the other knife was not identified at trial. It is therefore apparent that the prosecutor’s comment was made with reference to an armed individual going into the Lowery home. This is obviously a reasonable inference from the evidence and not a comment on the failure of the appellant to take the stand. Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961), Grady v. State, Ala.Cr.App., 391 So.2d 1095 (1980) and authorizes cited. Further, with reference the statement “. . . we are not prosecuting a murder or rape, it’s just a burglary today”, the trial court promptly sustained the objection to this argument and instructed the jury to disregard such statement and the district attorney apologized.

No further ruling was invoked in the trial court, and under the circumstances as shown by this record, we are of the opinion that any possible prejudicial effect was eradicated by the trial judge’s action. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Merchant v. State, Ala.Cr.App., 384 So.2d 627 cert. denied, Ala., 384 So.2d 632 (1980); Grady v. State, Ala.Cr.App., 391 So.2d 1095 (1980); Proctor v. State, Ala.Cr. App., 391 So.2d 1092 (1980).

Ill

The trial court conducted a separate sentencing hearing after the trial, at which three authenticated copies of burglary convictions from Muscogee County, Georgia were placed in evidence, each showing a conviction of the appellant for a prior separate offense of burglary. It was after receiving these matters in evidence that the trial court entered its judgment which set sentence at 26 years’ imprisonment and de-terminated that the appellant was a Habitual Offender within the meaning of the Alabama Statutes.

We find that a proper objection was made by the appellant’s attorney to the admissibility of the three Georgia prior convictions which raise the issue vel non of the trial court’s basing its determination of the habitual offender status of appellant on these three prior convictions.

Without dispute, two of these convictions are based on guilty pleas entered in Superi- or Court, Muscogee County, Georgia. In the third case, however, appellant merely entered a plea of “nolo contendere” to the charge against him.

In using this conviction (Muscogee Superior Court No. 31183), in which a nolo con-tendere plea had been entered by the appellant, the trial court committed error.

Mr. Justice Simpson quoting from Corpus Juris in the case of State ex rel. Woods v. Thrower, 272 Ala. 344, 131 So.2d 420 (1961) stated:

“ ‘The so-called plea of “nolo contendere”, which is still allowed in some jurisdictions, is not a plea in the strict sense of that term in the criminal law, but a formal declaration by accused that he will not contend with the prosecuting authority under the charge. It is said to be in some respects in the nature of a compromise between the state and defendant. It is not one of the pleas, general or special open to accused in all criminal prosecutions, and is allowable only under leave and acceptance by the court. When accepted by the court it becomes an implied confession of guilt, and, for the purposes of the case only, equivalent to a plea of guilty; and when judgment has been entered on the plea, the record is competent evidence of fact of conviction. The difference between it and a plea of guilty appears simply to be that, while the latter is a confession binding defendant in other proceedings, the former has no effect beyond the particular case.’ ”

See also Fidelity-Phenix Fire Ins. Co. v. Murphy, 231 Ala. 680, 166 So. 604 (1936) and May v. Lingo, 277 Ala. 92, 167 So.2d 267 (1964). See Annotation 89 A.L.R.2d 540.

The rule in Alabama is that a conviction based upon a plea of nolo contendere is inadmissible in evidence in other proceedings, Smith v. State, 46 Ala.App. 157, 239 So.2d 230 (1970); Wright v. State, 38 Ala.App. 64, 79 So.2d 66 cert. denied, 262 Ala. 420, 79 So.2d 74 (1954) and May v. Lingo, supra.

It therefore follows that the sentencing hearing of the appellant must be set aside and held for naught under the foregoing authorities. This case is hereby affirmed but remanded for a proper sentence not inconsistent with this opinion.

AFFIRMED, REMANDED FOR PROPER SENTENCE.

HARRIS, P. J., concurs.

BOOKOUT and DeCARLO, JJ., concur in Parts I and II and concur specially in Part III.

BOWEN, J., concurs in Part II; concurs specially in Part III, but dissents as to Part I.

BOOKOUT, Judge,

concurring specially:

I concur in parts I and II of the opinion, but concur specially in part III only because the decisions of the supreme court are binding upon this court per § 12-3-16, Code of Ala. 1975. Cases cited in the opinion, supra, certainly hold that a conviction based upon a plea of nolo contendere cannot be used in any other proceeding. Yet, I disagree with the reasoning in those opinions and hope that on certiorari the supreme court would adopt the reasoning set out in Justice Go-odwyn’s dissent in State v. Thrower, supra. That is, the “conviction” and not the “nature of the plea” is what should govern.

The statute in question here, § 13A-5-9, Code of Ala. 1975, provides for enhanced punishment on proof of certain prior felony “convictions.” The appellant had a prior “conviction” in Georgia which was based upon a plea of nolo contendere which would support a conviction in that state. The fact that defendants cannot enter a “nolo” plea in Alabama courts should have no effect on a valid conviction in another state. Our habitual offender statute does not prohibit the use of convictions based upon pleas of “nolo contendere” and neither should our courts, in my opinion. See: 24B C.J.S. Criminal Law § 1960(1), p. 450 n. 74; 5 ALR2d, Anno. § 15, at 1103.

DeCARLO, J., joins in the above.

BOWEN, J., concurs in Part II and joins in special concurrence.

BOWEN, Judge,

concurring in part and dissenting in part.

I concur in Part II and join in the special concurrence in Part III of the majority opinion. I dissent from Part I for the reasons I stated in my dissent in Duncan, 369 So.2d at 888.


source: Caselaw Access Project

author: FAULKNER, Justice. ALMON, Justice,

license: Public Domain

text:
    Ex parte: State of Alabama. (Re: Donald SNIPES v. STATE of Alabama).
    80-524.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for petitioner.
    Robert P. Lane of Phillips & Funderburk, Phenix City, for respondent.
   FAULKNER, Justice.

Writ quashed as improvidently granted.

TORBERT, C. J., JONES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX and ALMON, JJ., dissent.

SHORES, J., not sitting.

ALMON, Justice,

dissenting.

I respectfully dissent from the decision of the majority of this Court to quash the writ of certiorari as improvidently granted.

As Judge Bookout of the Court of Criminal Appeals has pointed out, the cases holding that a plea of nolo contendere cannot be used in another proceeding should not be followed.

Justice Goodwyn, in his dissent in State v. Thrower, 272 Ala. 344, 131 So.2d 420 (1961), states the better reasoning as follows: “It is my view that the nature of the plea, whether it be one of ‘guilty’, ‘not guilty’, or ‘nolo contendere’ ... is immaterial in determining whether there has been a ‘conviction . . .. ” Code 1975, § 13A-5-9, provides for punishment based on prior “convictions” and does not speak to the plea in the prior proceeding. To disallow the use of a conviction based on a plea of nolo contendere is to allow a defendant to circumscribe the operation and purpose of the statute.

It is my opinion that a conviction in another state, based on a plea of nolo conten-dere, should be used like any other conviction in determining punishment under § 13A-5-9.

MADDOX, J., concurs.


author: FAULKNER, Justice.

text:
    Ex parte Donald SNIPES. (Re Donald Snipes v. State of Alabama).
    80-531.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Robert P. Lane for Phillips and Funder-burk, Phenix City, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

Writ quashed as improvidently granted.

TORBERT, C. J., and MADDOX, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.

SHORES, J., not sitting.


author: TYSON, Judge.

text:
    Eddie STEVENSON, Jr. v. STATE of Alabama.
    3 Div. 271.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      C. Knox McLaney, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Eddie Stevenson, Jr., was indicted for the first degree murder of Phillip Lee Jones “by shooting him with a shotgun.” Appellant’s plea of former jeopardy was denied by the trial court and the jury found appellant “guilty as charged.” Sentence was set at life imprisonment.

On February 28, 1979, appellant shot and killed Phillip Lee Jones at the Big Bear Supermarket at the corner of Goode Street and Fairview Avenue in Montgomery. Appellant shot the victim with a .410 gauge shotgun.

Appellant was originally indicted for this shooting by the Montgomery County Grand Jury on July 13, 1979, said indictment charging him with first degree murder by shooting the victim with “a pistol”. During the trial under this indictment the state’s evidence clearly showed that the weapon appellant used was “a shotgun”. At the close of the state’s case the appellant moved to exclude the state’s evidence on the grounds that there was a fatal variance between the indictment and the state’s proof. The trial court declined to rule on the motion at that time and instead granted the prosecution a recess to do some overnight research on the issue raised by the appellant. After both sides had completed further research, the state, in light of the appellant’s motion to exclude, requested permission to amend the indictment to conform to the evidence or in the alternative that the state be granted a nol pros with leave to reindict. After appellant refused to consent to amendment, the trial court, while agreeing with both counsel that the mistake in the indictment was a “material variance”, dismissed the prosecution and ordered preparation of another indictment, pursuant to §§ 15-8-90 and -91, Code of Alabama 1975.

Appellant was reindicted under the September 18, 1979, indictment as noted above. He filed a timely motion of Plea of Former Jeopardy which was denied by the trial court and he was convicted of first degree murder. The appellant’s subsequent motion to arrest judgment due to appellant’s former jeopardy was also denied and this appeal followed.

I

Appellant’s sole contention on appeal is that he was twice placed in jeopardy for the same offense. His first prosecution was dismissed with an order to reindict after the state proved a killing with “a shotgun” under an indictment which charged a killing with “a pistol”. The trial court followed the procedure set out in §§ 15-8-90 and -91, Code of Alabama 1975. Section 90 provides that:

“An indictment may be amended, with the consent of the defendant entered of record ... or when any person, property or matter therein stated is incorrectly described.”

Section 91 adds that:

“If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time ...” (Emphasis added)

Appellant correctly asserts that the variance referred to in the above sections must be a “material variance” to raise the prosecution’s right to amend the indictment with defendant’s consent or to have the action dismissed with leave to reindict should the defendant refuse to consent to an amendment. Ex parte Collins, Ala., 385 So.2d 1005, rev’g, Ala.Cr.App., 385 So.2d 993 (1980), and cases cited therein; Ex parte Allred, Ala., 393 So.2d 1030 (1980). The reason for requiring a “material variance” is that there must be some “manifest necessity” for dismissing a prosecution and, thereby, precluding a defendant’s right to a speedy trial by the existing tribunal. Ex parte Collins, supra; Ex parte Allred, supra. This requirement also prevents a prosecutor from seeking a nol pros (dismissal) on a mere whim, or in fear that the jury is leaning in favor of the defendant during trial.

The case of United States v. Bobo, 586 F.2d 355 (5th Cir.1978) expressed these policies behind the former jeopardy rules, concisely, as follows:

“The general legal principles applicable in this area are relatively clear. The bar of the double jeopardy clause operates to protect an accused against multiple prosecutions or multiple punishments for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Jeopardy attaches at the empaneling and swearing in of the jury, Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) and from then on, consideration must be given to the defendant’s 'valued right ... to have his trial completed by the particular tribunal summoned to sit in judgment on him.’ Id. at 736, 83 S.Ct. at 1034. When that right is denied by declaration of a mistrial at the behest of the prosecution or on the court’s own motion, reprosecution is prohibited unless there is a ‘manifest necessity for the [mistrial] or the ends of public justice would otherwise be defeated.’ United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); accord, Arizona v. Washington, 434 U.S. 497, 504, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Evers, 569 F.2d 876, 878 (5th Cir.1978).”

The “manifest necessity” required in cases of the type before us is a “material variance” between the indictment and proof such that a reversal would likely follow any convictions based upon such indictment. Such “material variances” have been determined on a case by case basis by the Alabama courts. Settled cases in Alabama support appellant’s contention that the variance between a charge of shooting with “a pistol” and proof of shooting with “a shotgun” is not “material”. Turner v. State, 97 Ala. 57, 12 So. 54 (1892); Taylor v. State, 148 Ala. 565, 42 So. 997 (1907). The rationale for this ruling is that these two weapons are of the same general character and inflict the same type of injury. Turner v. State, supra.

Therefore, the trial court was in error in ordering a nol pros and reindictment pursuant to §§ 15-8-90 and -91. Such error would, ordinarily, require a reversal of the conviction below as appellant asserts.

However, the error by the trial court in this case was induced by the appellant with his motion to exclude the state’s evidence on the grounds of a fatal variance between the indictment and proof, and also by not then consenting to an amendment of the indictment. Such actions by the appellant estop him from subsequently claiming former jeopardy. Ex parte Winston, 52 Ala. 419 (1875); Mitchell v. State, 16 Ala.App. 635, 80 So. 730, cert. denied, 202 Ala. 700, 81 So. 891 (1918); Shiflett v. State, 37 Ala.App. 300, 303, 67 So.2d 284 (1953); Pratt v. State, 48 Ala.App. 341, 264 So.2d 571, 576 (1972); Moore v. State, Ala.Cr.App., 366 So.2d 1150 (1979). The reasoning is that a defendant who raises an issue requiring dismissal (even if the issue is without merit) has made known his preference against the current prosecution and has, in so doing, impliedly asserted that he is not in jeopardy. Such assertions, either actual or implied, dispense with the need to preserve the defendant’s right to a completion of the present trial, since the defendant has acted to the contrary.

Ex parte Winston, supra, held on point with this case, that where the defendant induced dismissal of the first action by moving to exclude the state’s evidence on the theory of a variance between the indictment and proof, the defendant was es-topped from asserting the double jeopardy bar whether or not a “material variance” did, in fact, exist.

Recent federal cases also acknowledge this “estoppel” exception to the “double jeopardy” bar. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Bobo, 586 F.2d 355 (5th Cir.1978); United States v. Brooks, 599 F.2d 943 (10th Cir.1979).

In United States v. Bobo, supra, the U.S. Fifth Circuit in referring to the former jeopardy rule stated:

“By contrast, where the defendant moves for a mistrial or consents to its declaration, ordinarily the double jeopardy clause does not bar his retrial. United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978); Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Crouch, 566 F.2d 1311, 1317 (5th Cir.1978).”

The theory for applying this exception in federal cases is that a defendant who moves for a mistrial consents to a termination of the present trial and impliedly consents to a retrial. United States v. Brooks, supra. The defendant, though he has a “valued right” to a speedy trial and against multiple prosecutions, has a comparable right to seek or suggest a termination of the present trial, to take the case from a jury when circumstances occur that might prejudice his case. United States v. Dinitz, supra. The evils that the double jeopardy bar seeks to prevent, therefore, vanish when the defendant induces the dismissal of the existing prosecution.

We would point out that all double jeopardy cases should be carefully examined to assure protection of defendants’ rights. However, defendants should not be allowed to induce error and thereby possibly escape prosecution by manipulation of the court under the guise of “double jeopardy” protection.

In the case before us, we find nothing to remove this cause from the scope of the “estoppel” principle set forth in Ex parte Winston, Mitchell, and Moore, supra.

Therefore, the appellant, by virtue of his motion to exclude the state’s evidence on grounds of a variance between the indictment and proof, and by declining to consent to an amendment of the indictment is es-topped from claiming former jeopardy and his subsequent conviction must be upheld. There is no error. This judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Eddie STEVENSON, Jr. (In re Eddie Stevenson, Jr. v. State of Alabama).
    80-561.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    C. Knox McLaney, III, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

Writ quashed as improvidently granted.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Patrick Caldwell KIP, Appellee.
    No. 61022.
    Supreme Court of Florida.
    Sept. 17, 1981.
    Anthony T. Young, Asst. State Atty., Okeechobee, for appellant.
    Donald L. Ferguson, Miami, for appellee.
   PER CURIAM.

The order of the Circuit Court of the Nineteenth Judicial Circuit granting appel-lee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause remanded for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla.1981).

It is so ordered.

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


author: DOWNEY, Judge. PER CURIAM.

text:
    M. Douglas PETERS and Donald J. Kasten, Appellants, v. COLLISION CLINICS INTERNATIONAL INC., a Florida Corporation, and Alfred L. Palladino, Appellees.
    No. 79-2300.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    On Rehearing Feb. 25, 1981.
    Barry Franklin and Norman S. Segall, Miami, for appellants.
    Thomas E. Brandt of the Law Office of Thomas E. Brandt, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

This litigation arose out of appellants’ refusal to pay appellee’s bills for automobile repairs and as a result of appellants’ claims for damages pursuant to Chapter 559, Florida Statutes (1975).

Appellants were police officers employed by the City of Dania. Each took his automobile to appellee for repairs. Peters received a bill for $156, while Kasten received one for $286. Both bills were disputed and payment was not forthcoming. Sometime thereafter appellee, Palladino, President of appellee, Collision Clinics International, Inc., mailed a letter to appellants’ employer, The Dania Police Department, to the attention of the Chief of Police, stating that appellants had failed to pay the foregoing bills and that, as a consequence, other employees of the department would no longer receive discounts or credit from appellee. This letter was posted on the bulletin board of the police department.

Shortly after notice of the foregoing letter, appellants wrote appellee complaining of appellee’s letter to the Department contending the bills were disputed. Peters demanded a letter of apology and notice to all recipients of any such letter that the bill was disputed. Appellee’s response was to sue appellants in county court for the unpaid bills. Appellants counterclaimed for compensatory and punitive damages and the cause was transferred to the circuit court. Prior to trial appellees filed an offer of judgment in the amount of $502 as to each of the counterclaimants.

At trial the court directed a verdict in favor of appellants on their counterclaims, concluding that appellees had violated Sections 559.72(4) and (6). The court instructed the jury that it must return a verdict for each appellant for not less than $500. Appellants objected to this instruction because they contended that appellees had violated two provisions of Section 559.72, i. e., sub-paragraphs (4) and (6), and thus they were each entitled to a minimum verdict of $1,000, relying upon Section 559.77(1), Florida Statutes (1975).

The jury returned verdicts for Peters and Kasten for $500 each and a verdict for Collision Clinic for $156 against Peters and $286 against Kasten. Thereafter, the court entered judgment on the verdicts and also allowed Peters and Kasten attorneys fees of $800 each.

The sole question on appeal is appellants’ contention that the trial court erred in failing to instruct the jury that appellants were entitled to damages of $500 for each violation of Section 559.72.

We have seriously considered appellants’ contention and find it to be without merit. Though we are fully cognizant that statutes such as Chapter 559 are to be liberally construed in order to effect the purpose for which they were enacted, that does not afford us the opportunity to enlarge upon the remedy authorized by the Legislature. There is no indication in Section 559.77(1) that a debtor bringing suit thereunder is to recover at least $500 for every violation of Section 559.72. Paraphrasing, it simply provides that a debtor may bring a civil action against a person violating the provisions of Section 559.72 and upon a decision in favor of the debtor the defendant shall be liable for the debtor’s actual damages or $500, whichever is greater, together with attorneys fees and costs. It would have been quite simple for the Legislature to provide actual damages or $500 for each violation of the statute, but it did not do so. Furthermore, subsection 77 authorizes the trial court, in its discretion, to award punitive damages. We suggest that one of the factors which might be considered in exercising the discretion to award punitive damages might be multiple violations of subsection 72. Thus, the instruction of which appellants complain was appropriate.

Accordingly, we find no demonstration of reversible error and accordingly affirm the judgment appealed from.

HERSEY and HURLEY, JJ., concur.

PER CURIAM.

By petition for rehearing appellees seek review of our previous allowance of attorney’s fees on this appeal. Upon consideration of the petition and appellant’s response we recede from our previous holding and deny appellant’s application for attorney’s fees on appeal.

This suit was brought under Chapter 559, Florida Statutes (1979). Section 559.77(1) authorizes the allowance of attorney’s fees to the prevailing party. Section 59.46, Florida Statutes (1979), makes the provision of Chapter 559 regarding attorney’s fees applicable on appeal. However, appellants did not prevail on appeal. Thus, it would appear there is no authority for allowing appellants attorney’s fees for this appellate proceeding.

Accordingly, our previous allowance of attorney’s fees is vacated.

DOWNEY, HERSEY and HURLEY, JJ., concur.

      . Section 559.72, Florida Statutes (1975), in pertinent part provides:
      In collecting consumer claims, whether or not licensed by the Division, no person shall:
      * * * * * *
      (4) Communicate or threaten to communicate with a debtor’s employer prior to obtaining final judgment against the debtor, unless the debtor gives his permission in writing to contact his employer or acknowledged in writing the existence of a debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that his employer will be contacted if a final judgment is obtained;
      ******
      (6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the claim is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within thirty days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding ninety days.

      . Section 559.77(1) provides:
      (1) A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or five hundred dollars, whichever is greater, together with court costs and reasonable attorney’s fees incurred by the plaintiff....


text:
    MOSAR DEVELOPERS, INC., Appellant, v. CREECH & WILSON, INC. et al., Appellees.
    No. 80-751.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Dan G. Wheeler, Jr., and George L. Com-baluzier, Miami, for appellant.
    James A. Baccus, Miami, for appellees.
   PER CURIAM.

Pursuant to Florida Appellate Rule 9.310(f), Mosar Developers, Inc., seeks review of a circuit court order denying its motion to permit it to use funds on deposit in the registry of the court as security for supersedeas pending Mosar’s appeal from a money judgment.

Creech & Wilson, Inc., obtained a judgment in the amount of $130,000 against Mosar. After filing a notice of appeal from that judgment Mosar sought permission of the circuit court to use as part of a superse-deas bond the sum of $130,000, plus interest, which Mosar had deposited in the registry of the court to satisfy its creditors. The circuit court set the amount of the superse-deas bond at $149,500 and denied Mosar’s motion to use as part of the bond the funds on deposit in the court registry. It is that order which we have for review.

It was conceded in oral argument on this motion for review that, if Creech & Wilson is successful on this appeal, it will be entitled to the fund in the registry of the court. No other creditor has any prior or equal claim thereto. Thus, it appears to us that there is no reason why Mosar should not be able to use that fund as part of a bond to supersede the judgment pending appeal. If Creech & Wilson is successful on Mosar’s appeal from the judgment of $130,000, Creech & Wilson will be paid from said fund, plus the remainder of the bond for $149,500. No prejudice can accrue to Creech & Wilson from the use of said fund or said bond. The purpose of a supersedeas bond is:

to protect the party adversely affected against the consequences of the superse-deas or stay, and not against the appeal when the appeal is of right, except when a money judgment or decree is appealed, in which event the bond to be exacted is to pay same. Bernstein v. Bernstein, 43 So.2d 356, 358 (Fla.1959).

In view of the foregoing we hold the circuit court erred in refusing to allow Mo-sar to use the fund in the registry of the court as part of the amount of the bond of $149,500 necessary to supersede the judgment on appeal.

Accordingly, the order appealed from is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion. The circuit court is directed to allow Mosar a reasonable time to post the remainder of the amount of the bond, whereupon our stay of the cause entered September 25, 1980, shall be vacated.

REVERSED AND REMANDED with directions.

LETTS, C. J., and DOWNEY and AN-STEAD, JJ., concur.


text:
    L. Z. DICKEY, Appellant, v. AID LABORATORIES, INC., and Lacidim, Inc., a Florida Corporation, Appellees.
    No. 79-407.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Anthony N. Brimo, Jr., of Law Offices of David A. Hoines, P. A., Fort Lauderdale, for appellant.
    John A. Gentry, III, of Moyle, Gentry, Jones, Flanigan & Groner, P. A., West Palm Beach, for appellee, Aid Laboratories, Inc.
   PER CURIAM.

This defendant’s appeal presents solely a question as to whether the trial court erred in determining that personal service of process was properly effected on defendant. We affirm. In the circumstances of this case, the issue of service of process was a question of fact which was decided on conflicting evidence. Ample evidence is contained in the record to support the court’s conclusion and the judgment below is therefore affirmed. See Klosenski v. Flaherty, 116 So.2d 767 (Fla.1960); McIntosh v. Wibbeler, 106 So.2d 195 (Fla.1958); and Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1969).

AFFIRMED.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


author: GLICKSTEIN, Judge. BERANEK, Judge,

text:
    Judith Diane WILKERSON, Appellant, v. Allen Ray WILKERSON, Appellee.
    No. 79-2006.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Anthony T. Young, Okeechobee, for appellant.
    Dean Tooker, Okeechobee, and Edna L. Caruso, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The parties were divorced in Texas in 1973. One child, Denise Kay Wilkerson, was born on August 16, 1971, as issue of the marriage. By the terms of the final judgment and decree, the Texas court awarded custody of Denise to her paternal grandparents, Claude A. Wilkerson and Margaret Wilkerson, and visitation rights, including one month in the summer, to appellant, Denise’s mother.

In June, 1979, the paternal grandfather delivered Denise to appellant’s home in Texas for a one month visitation. Shortly thereafter, appellant and her new husband moved to Okeechobee County, Florida, and brought Denise with them. On July 13, 1979, appellant filed in Okeechobee County a petition for modification of Denise’s custody wherein she alleged that she and her present husband have a suitable and proper home in which to raise the child and that material changes in circumstances and conditions since the 1973 divorce warrant custody to be awarded to appellant.

The paternal grandparents and former husband moved to dismiss the petition for modification on the grounds that the criteria for exercising jurisdiction in Florida under Section 61.1308, Florida Statutes (1979), the Uniform Child Custody Jurisdiction Act, were not present in this case; that the Florida court was an inconvenient forum within the parameters of Section 61.1316, Florida Statutes (1979); that appellant wrongfully took Denise from Texas as proscribed by Section 61.1318, Florida Statutes (1979); and that appellant failed to file an affidavit required by Section 61.132, Florida Statutes (1979).

On August 24,1979, the trial court granted the motion to dismiss and ordered that Denise be returned to her grandparents. Thereafter, the trial court entered a further order to clarify its reasons for not accepting jurisdiction. The order recited inter alia:

The Court is of the opinion that even though the child is in the jurisdiction of the State of Florida, and that the mother resides in this State, the matter should be resolved in the State of Texas; that the mother should have instituted proceedings in the State of Texas, which was the most convenient forum, rather than leave with the child while under the visitation rights, to the State of Florida.

We agree with the trial court’s conclusions. Florida is not the child’s home state. Texas has a closer connection with her; and substantial evidence concerning Denise’s present or future care, protection, training and personal relationships is more readily available there. Rather than bringing the child to Florida, appellant should have sought modification in Texas. Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980). See also Matteson v. Matteson, 379 So.2d 677 (Fla.2d DCA 1980); Trujillo v. Trujillo, 378 So.2d 812 (Fla.3d DCA 1979). One of the purposes of the subject act is to assure that litigation concerning child custody takes place in the state in which the child and his family have the closest connection. We are confident that the appropriate court in our sister state would, upon appellant’s petition, enter an order of custody consistent with Denise’s welfare and best interests. Accordingly, we affirm.

AFFIRMED.

HERSEY, J., concurs.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially.

I concur in the result but view the order of the trial court slightly differently than the majority. It appears to me that the trial court simply declined to exercise jurisdiction in this cause and that this result was entirely proper pursuant to Section 61.1318, Florida Statutes (1979), which specifically authorizes a trial court to decline to exercise jurisdiction to modify a custody decree of another state if the petitioner seeking modification has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained a child after a visit or other temporary relinquishment of physical custody. It is uncontested that this is exactly what happened in this case, and I therefore think the trial court was entirely proper in refusing to exercise jurisdiction.


author: GLICKSTEIN, Judge.

text:
    RICHMOND COMPANY, INC., a Florida Corporation, Appellant/Cross-Appellee, v. ROCK-A-WAY, INC., a Florida Corporation, Appellee/Cross-Appellant.
    No. 80-207.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.

      Thomas A. Bratten of Bratten & Harris, P. A., West Palm Beach, for appellant/cross-appellee.
    Micheál A. Edwards of Law Offices of Charles L. Rowe, West Palm Beach, for appellee/cross-appellant.
   GLICKSTEIN, Judge.

This is an appeal and a cross-appeal from a final judgment based on the granting of appellee’s motion to dismiss appellant’s amended complaint. Because we agree that the complaint and amended complaint were properly dismissed the cross-appeal becomes moot and we dismiss it.

Appellant alleged in its complaint and amended complaint against appellee that appellant was a licensed general contractor specializing in roadway, drainage and utility construction; that in early 1979 the South Florida Water Management District requested bids from licensed general contractors for a project known as Belle Glade Recreation Area, First Phase Development, Roadways, Drainage and Utilities; that appellant was eminently qualified to construct the project; that on or about June 3, 1979, appellant entered into an oral agreement with appellee whereby appellant agreed that if it refrained from bidding the project as a prime general contractor and submitted a bid as a subcontractor to appellee for the construction work required by the project, appellant would be paid by appellee for that construction work if appellee was awarded the contract as a prime general contractor; that on or about the same day as the aforesaid agreement appellant submitted its bid to appellee with detailed specifications; that appellant refrained from bidding on the project as a prime general contractor; that appellee was awarded the prime contract; and that appellee failed and refused .to have appellant do and receive payment for the work contemplated by its bid. The amended complaint also contained the conclusions of the pleader that the above agreement did not have as its purpose, tendency or effect the stifling of competition. Appellant reasoned in the pleading that by refraining from bidding as a prime general contractor it was permitted to submit bids as a subcontractor to more than one prime general contractor which had the effect of increasing the number of prime general contractors bidding for the project. However, nowhere did appellant allege that it submitted its bid to other prime general contractors who in turn bid-ded for the project.

The trial court dismissed both the complaint and amended complaint on the ground that the parties’ contract was void as against that public policy defined in Finley Method Co. v. Standard Asphalt Co. of Florida, 104 Fla. 126, 139 So. 795 (1932).

Appellant argues that the matter should not have been decided on motion to dismiss and that factual issues had been raised by the amended complaint which were for the trier of fact to decide. We find appellant’s argument without merit and agree with the trial court that this case is governed by Finley Method Co., supra. . In that case the court said at 104 Fla. 129-130, 139 So. 796-797:

The principal contracts involved in this case were subject to the competitive bidding statutes. The rule is well settled in the United States that all agreements, whether principal or subsidiary in character, which, in their necessary operation upon the action of contractors engaged in bidding for public work, tend to restrain the natural rivalry and competition of the parties, and thus produce a result disadvantageous to the public, are against public policy and void. What the public has to be on guard against in the violation of such salutary statutes as these is not the violation direct, but the violation oblique; not the frank disregard of what the statutes in terms require, but the suave and insidiously evasive arrangements which, operating in secret understandings between contractors and their privies, tend to produce an effect as harmful in result as the most direct misconduct or malfeasance.
Therefore, without regard to its form, any agreement which is made between contractors and subcontractors, or others, for the purpose of preventing free and fair competition at public lettings of contracts, or for the purpose of giving undue advantage to either of the parties, or their privies, while engaged in the performance of public contracts, is prohibited by public policy and is void, though no actual injury may have resulted; the test of legality being the evil tendency of the agreement, and not its actual result in the particular instance. (Citations omitted).

On the face of the complaint and amended complaint sub judice, appellant alleged that appellee agreed to employ and pay it as a subcontractor provided it refrained from submitting a bid as a prime general contractor. The tendencies of such agreement were not only to extinguish competition between the parties as bidders for the primary contract but also to eliminate any competition with appellant for the subcontract bid.

We therefore hold the parties’ contract to be void and not a proper predicate for the award of damages.

APPEAL AFFIRMED.

CROSS-APPEAL DISMISSED.

DOWNEY and ANSTEAD, JJ., concur.


author: BERANEK, Judge.

text:
    Robert Arnold WHITE, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees. Brian LINSEN, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees.
    Nos. 80-640, 80-1360.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.

      Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., and Edna L. Caruso, West Palm Beach, for appellant.
    Melanie C. Jacobson, Asst. County Atty., West Palm Beach, for appellees.
    Jeff Tomberg, Boynton Beach, for appellant.
   BERANEK, Judge.

These appeals seek reversal of the trial courts’ dismissals of two separate complaints with prejudice based on a finding that neither complaint stated a cause of action. We affirm in part and reverse in part.

The White complaint alleged that Robert White, while a prisoner in the Palm Beach County Jail, was the victim of physical violence and sexual abuse by fellow prisoners. The complaint contained three counts, one each against the prisoners, the Sheriff and the County. The latter count generally alleged that Palm Beach County, as owner of the jail, had failed to use reasonable care in construction and maintenance of the jail thus causing the assaults upon plaintiff. The specific allegations can be divided into two categories. First, the physical configuration of the cells was such that jail guards could not exercise adequate surveillance. Second, the various facilities within the jail were alleged to be improperly constructed and maintained creating a substantial dehumanizing influence upon the prisoners. The facilities alleged to be inadequate were toilets and showers, food, recreation, and floor space.

The Linsen complaint similarly alleged that Brian Linsen was assaulted while a prisoner in the Palm Beach County Jail. This complaint contained counts against the County and the Sheriff. The County was alleged to own, maintain and be responsible for the condition of the jail. The County’s alleged negligence included provision of an inadequate facility, insufficient funding, failure to separate dangerous inmates, and no surveillance system. The complaint contended the County had knowledge of the unsafe condition and assaults upon plaintiff.

Based upon Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), the trial court in each case found that the alleged acts of the County were within the still protected sphere of the sovereign immunity doctrine as set forth by the Florida Supreme Court and dismissed the County as a defendant. Commercial Carrier holds that although the Legislature has waived sovereign immunity on a broad basis, certain discretionary governmental functions remain immune from tort liability. The Court discarded the general duty— special duty test in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) and adopted the operational/planning analysis in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968) in identifying those discretionary governmental acts which’ remain immune. Under this analysis operational level decisions and actions are not immune while decisions at the planning level remain immune.

We conclude that the trial court here erred in dismissing both complaints with prejudice because in each complaint allegations are present to the effect that Palm Beach County was involved in the actual operation of the jail. It is alleged that both the Sheriff and the County engaged in actual joint operation of the facilities. We conclude that the trial court erred because, if the County was involved in the actual operation of the jail, this conduct is not protected by the sovereign immunity doctrine enunciated in Commercial Carrier Corporation v. Indian River County, supra. This conduct would be an operational, not a planning function.

In so ruling we are cognizant of Section 30.49, Florida Statutes (1979). Under this statute the Sheriff, an independent constitutional officer, has the duty to submit a proposed budget each year showing “the estimated amounts of all proposed expenditures for operating and equipping the sheriff’s office and jail other than construction repair, or capital improvements of county buildings during the said fiscal year.” The parties agree that this is the statutory source of the sheriff’s duty to operate the jail.

Without reference to the foregoing statute, the First District found the respective duties of County and Sheriff consistent with the statute. Baugher v. Alachua County, 305 So.2d 838 (Fla. 1st DCA 1975). In that case plaintiff sued the County and Sheriff of Alachua County for the death of the plaintiff’s son who was murdered by a fellow prisoner while incarcerated in the County Jail. The trial court dismissed the complaint against the County on the grounds that the Sheriff had custody of and responsibility for the prisoners. The First District Court of Appeal affirmed holding:

However, the operation of that facility and the control and custody of the inmates therein incarcerated are in the hands of the sheriff. That the defendant County has a duty to provide funds for the operation of the jail can hardly be the basis for holding that it thereby becomes responsible for the day-to-day designation of which prisoners are to be placed in particular cells within the jail. That is the duty and responsibility of the sheriff.

While the County did not have a legal duty to participate in the operation of the jail, liability may be imposed upon the County and a cause of action stated where the County has actually assumed this duty by participating in the operating functions of the jail.

A major portion of both complaints is generally to the effect that Palm Beach County Jail is old, inadequately funded and overcrowded. It is asserted that these conditions contributed to the injuries complained of by both plaintiffs. Although phrased in terms of “operation and maintenance” in the complaints, what is actually being asserted is a failure on the part of the County to build a new jail in the face of the obvious inadequacies of the old jail. It may well be the duty and responsibility of Palm Beach County to provide a new jail under the circumstances now existing in that County. We take judicial notice that the population and the crime rate have drastically increased in Palm Beach County in the last 15 years and that the number of persons required to be incarcerated in the Palm Beach County Jail facility has drastically increased. Although a new jail may be necessary, we conclude that the decision whether or not to build one is a planning function. Decisions in this regard remain a discretionary governmental act still within the sovereign immunity doctrine as enunciated in Commercial Carrier. As such, any aspects of the complaint based upon the inadequacies of the jail caused by the jail’s inability to adequately house a population larger than it was originally intended for are within the protection of the sovereign immunity doctrine.

The judgment below is reversed and the cause remanded for further proceedings on the cause of action which is limited to the results of the County’s actual operation of the jail facilities. The County may be held responsible if its activities in the jail operation were negligent and resulted in the injuries complained of. These further proceedings shall include the filing of amended complaints limiting the cause of action as stated herein.

REVERSED AND REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    Stanley Demorse HALL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1026.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Douglas N. Duncan, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was adjudicated guilty of armed robbery and aggravated battery and was sentenced to a term of ten years imprisonment on the first charge and five years on the second, to run concurrently. The record does not support a conviction for armed robbery. Accordingly, we reverse that portion of the adjudication and direct the trial court to reduce the crime to robbery. Because the sentence imposes terms to run concurrently, creating an interrelationship between the two penalties imposed, we reverse the sentence and, on remand, the trial court shall resentence appellant for simple robbery and aggravated battery.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Florence GREENBERG, Individually and as Personal Representative of the Estate of Jerome Greenberg, Appellant, v. MANOR PINES REALTY CORPORATION et al., Appellees.
    No. 80-1354.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    William P. Jacobson of Jacobson & Lurie, P. A., West Palm Beach, for appellant.
    Michael D. Stewart and Michael A. Schroeder of Zeiher & Schroeder, Fort Lauderdale, for appellee — Manor Pines Realty Corp.
    David Yelen of Yelen & Yelen, P. A., Coral Gables, for appellees — Foundation Life Ins. Co. of America, Inc., and Associated Health Plans, Inc.
   PER CURIAM.

Appellant brought an action in three counts. The first was against Foundation Life Insurance Company and Associated Health Plans. The second was against Manor Pines Realty Corporation. The third was against an individual not a party to this appeal.

In Count I, appellant alleged that her deceased husband had been insured by Foundation under a group policy of life insurance administered by Associated with benefits of $50,000 payable to appellant. The group policy insured employees of Man- or Pines. The depositions establish without question that at the time the group policy was issued and at all times thereafter, appellant’s husband was not an employee of Manor Pines; and that Associated was not the administrator of the life insurance policy. Further, the record is devoid of anything that would support a finding of insurance coverage on the basis of waiver or estoppel with respect to the requirement of employment. Therefore, the trial court properly entered summary judgment in favor of Foundation and Associated.

The trial court also awarded summary judgment against appellant on her claim against Manor Pines. This claim was based on allegations that Manor Pines knew the decedent was not an employee as required by the insurance policy but fraudulently represented to the decedent that he was covered by the policy and that his beneficiary would recover death benefits of $50,-000. It was further alleged that the decedent received statements for premiums and made payments to Manor Pines. The deposition of the bookkeeper-office manager of Manor Pines confirms the allegation. The documentary evidence created the inference that the decedent was led to believe that he had insurance coverage. The testimony of the bookkeeper that she told the decedent he was not covered created a question of fact rather than dispelling the inference established by the documentary evidence. We therefore reverse the summary judgment in favor of Manor Pines and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    In re Guardianship of John WEEKS, Sr.
    No. 80-1518.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Kathleen B. Johnson, Boca Raton, for appellant.
    Barry N. Natter of the Law Offices of George A. Patterson, Deerfield Beach, for appellee.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction. The notice of appeal is untimely since the record does not reflect that the proceedings below were ever declared to be adversary proceedings in accordance with Florida Rule of Probate and Guardianship Procedure 5.025. See also: In re Estate of George E. Beeman, deceased, 391 So.2d 277 (Fla. 4th DCA 1980).

DISMISSED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Roberto COSTA, Petitioner, v. STATE of Florida, Respondent.
    No. 81-449.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Donald L. Ferguson, Miami, for petitioner.
    No appearance for respondent.
   ANSTEAD, Judge.

The petitioner is here complaining about the alleged excessiveness of bail which was set by the trial court at $250,000.00. The drug trafficking charges pending against the petitioner involve substantial penalties which include a mandatory minimum sentence of 15 years imprisonment and a fine of $200,000.00. Section 893.135(l)(a)(3), Florida Statutes (1979). The record reflects that the trial court had evidence before it that the petitioner was heavily engaged in illicit drug trafficking in this country as well as Colombia and the Bahamas and that he had actually lived in Colombia at one time. Testimony further indicated that the specific transaction for which the petitioner is presently charged involved a sale by the petitioner to undercover agents of some 14,-000 pounds of marijuana valued at 4.5 to 5 million dollars. Under these circumstances we do not believe the petitioner has demonstrated an abuse of discretion by the trial court. Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980).

Accordingly, the petition for review of bail is denied.

MOORE and HERSEY, JJ., concur.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Sylvia SCHOEN and David Schoen, her husband, Appellants, v. Robert GILBERT and Highland Insurance Company, a foreign corporation for profit, Appellees.
    No. 80-163.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied Oct. 12, 1981.

      Rizzo & Koltun and Dennis A. Koltun, Miami, for appellants.
    Worley & Gautier and Henry H. Har-nage, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final summary judgment under review which was entered below in favor of the defendant Robert Gilbert and his insurer Highland Insurance Company is affirmed upon a holding that: (a) the defendant Gilbert as a landowner had no duty to warn the plaintiff Sylvia Schoen as a social guest in the defendant Gilbert’s home as to a six-inch drop between the foyer and living room of the defendant’s house into which the plaintiff slipped and fell, as a mere shift in the level of floors between two rooms in a house is not a dangerous condition requiring advance warning thereof; Hoag v. Moeller, 82 So.2d 138 (Fla.1955); Bowles v. Elkes Pontiac Co., 63 So.2d 769 (Fla.1953); General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964); Meyer v. Pitzele, 122 So.2d 228 (Fla. 3d DCA 1960); and (b) the fact that the foyer and living room herein were shrouded in semi-darkness at the time the plaintiff Sylvia Schoen slipped and fell did not elevate, in our view, the above natural drop-off into a dangerous condition requiring a warning thereof, as such semi-darkness was a factor which should have signaled caution to the plaintiff Sylvia Schoen and was relevant only as to said plaintiff’s comparative negligence. See e. g., Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971); Trinity Episcopal Church of Vero Beach v. Hoglund, 222 So.2d 781 (Fla. 4th DCA 1969).

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

I respectfully dissent. First, the majority’s decision is anachronous in light of this State’s adoption eight years ago of a comparative negligence rule. Second, the majority’s decision is unsound even when tested under the displaced law of contributory negligence.

A.

As is so explicit in Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971), Florida’s “step in the dark” rule, namely, that one who enters a totally unfamiliar area in the darkness is not ordinarily justified in proceeding without first ascertaining whether there are obstacles to safe progress, is a rule of contributory negligence. Thus, in times past, a plaintiff whose behavior was within the parameters of this rule was barred from recovery, not because an obstacle in the dark was not a dangerous condition, but because the plaintiff’s negligence contributed, in some appreciable way, to cause the injury.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the Florida Supreme Court abandoned the contributory negligence rule in favor of a rule of comparative negligence. Given that an obstacle in the dark is, and always has been, a dangerous condition, the question, since Hoffman v. Jones, is to what extent did the plaintiff’s negligence cause the injury. That question is one for a jury to answer.

This case is not unlike Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla.1980). There Mrs. Ellis, visiting her son’s new home for the first time, was given the traditional grand tour, which unfortunately included a six-to-eight-inch step-down in the garage. Mrs. Ellis failed to observe that the upper level of the garage floor had a two-inch red line painted along the edge. Otherwise, both levels of the floor were gray. The court held, inter alia, that whether the homeowner had a duty to warn Mrs. Ellis was a factual question to be decided by a jury. Significantly, the court in Ellis, reversing a summary judgment in favor of the defendants, rejected an entire line of cases which presumably would have sanctioned summary judgment because the exemption from liability in those cases was founded upon the now-extinct contributory negligence rule.

An obstacle in the dark is a hazard, whether obvious or not. Since obviousness relates to the plaintiff’s negligence, not the defendant’s, obviousness can no longer bar recovery as a matter of law. Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA), rev. denied, 389 So.2d 1113 (Fla.1980); Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980). Cf. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979) (under comparative negligence, the obvious danger of a product is a defense, not a bar to recovery). If taking the “step in the dark” is, alternatively, considered a risk assumed by the plaintiff, see Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), the result is the same since, under comparative negligence, the doctrine of assumed risk is not a bar to recovery. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In short, it appears that the “step in the dark” rule, as we once knew it, is no more, and its remnants will be found in instructions to the jury-

B.

The error of the majority is exacerbated by the fact that even under pre-compara-tive negligence law, Mrs. Schoen was entitled to have her case submitted to a jury.

Briefly, the facts before the trial court were that Mrs. Schoen and her husband were guests, for the first time, in Gilbert’s newly-acquired home; while the three were sitting in the kitchen, Gilbert asked Mrs. Schoen if she would like to see his living room; Mrs. Schoen assented, got up, and, unguided by Gilbert, who remained in the kitchen with Mr. Schoen, made her way into a foyer area darkened by drawn shades and shutters and then fell into the sunken and dark living room.

Under these circumstances, the cases relied on by the majority for the proposition that a mere difference in floor levels is not a dangerous condition requiring warning are inapposite. Instead, because this was not just a difference in floor levels, but rather a difference in floor levels in a darkened area, the applicable rule in the days of contributory negligence was that “where a person proceeds in the dark but has the right reasonably to expect that the route ahead is free of the particular physical impediment which causes injury, it is for the jury to determine from all the circumstances whether that person used due care.” See Brant v. Van Zandt, 77 So.2d 858 (Fla.1955); Yoder v. Greenwald, supra. I think it is indisputable that Gilbert’s invitation to Mrs. Schoen to look at his living room, combined with his failure to accompany her or to light the area, created jury questions whether Mrs. Schoen had the right to reasonably expect that the course was clear and whether she used due care.

Accordingly, I would reverse the summary judgment for the defendants and remand the cause for trial.

      . Compare, however, Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965) (while an uneven level itself may not be dangerous, surrounding circumstances in a particular case may create a duty to warn).


author: GRIMES, Judge.

text:
    ALAMO RENT-A-CAR, INC., and American Southern Insurance Company, Appellants, v. Thomas F. SUMMERS et al., Appellees.
    No. 80-1634.
    District Court of Appeal of Florida, Second District.
    April 22, 1981.
    Peter H. Dubbeld of Watson, Goldstein & Douglass, P. A., St. Petersburg, for appellants.
    Mark E. Hungate of Fowler, White Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellees Barbara Bennett and Wanda Wallack.
   . ON MOTION TO DISMISS APPEAL FROM NONFINAL ORDER

GRIMES, Judge.

Summers was involved in an accident with an automobile owned by Alamo Rent-A-Car and leased to Bennett, its driver. After Summers brought suit for damages against them, Bennett and Alamo joined issue with respect to whose carrier had the primary coverage and whose carrier had the secondary coverage. On motion for summary judgment, the court determined that Alamo’s carrier was primary. Alamo and its carrier are now endeavoring to appeal that order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) which reads as follows:

(3) Review of non-final orders of lower tribunals is limited to those which . . . determine . . . the issue of liability in favor of a party seeking affirmative relief.

The case of Ogur v. Mogel, 390 So.2d 105 (Fla.3d DCA 1980), is directly on point. The court in Ogur held that a similar order was not an appealable nonfinal order under rule 9.130(aX3)(C)(iv) because it did not determine an “issue of liability” and was not a ruling on a motion which sought “affirmative relief.”

In holding that the order did not determine an issue of liability, the court reasoned that the liability of the defendants was inchoate prior to judgment. A reasonable argument could be made for this position except for the fact that it flies in the face of numerous other court decisions. In Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972), the court specifically rejected the contention that a code-fendant could not take an interlocutory appeal from a partial summary judgment on the issue of liability because the determination of coverage did not at that point carry with it the obligation to pay. Accord, Auto Owners Insurance Co. v. West, 260 So.2d 534 (Fla.3d DCA 1972), rev’d on other grounds, 276 So.2d 31 (Fla.1973). While these cases were decided under former Florida Appellate Rule 4.2(a), the current rule carries forward the same language insofar as it refers to decisions on “liability.” Moreover, three courts, including the Third District Court of Appeal, have already entertained appeals from nonfinal orders determining insurance coverage under the new rule. Fidelity & Casualty Co. of New York v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980); State Farm Automobile Insurance Co. v. Kraver, 364 So.2d 1259 (Fla.3d DCA 1978); York Insurance Co. v. Becker, 364 So.2d 858 (Fla.2d DCA 1978).

The second ground given by the court in Ogur for dismissing the appeal charts new ground because it construes for the first time the language added to rule 9.130(a)(3)(C)(iv) pertaining to an order entered “in favor of a party seeking affirmative relief.” The court reasoned that where the judge entered the order upon the motion of a codefendant, this did not constitute the obtaining of affirmative relief. We are inclined otherwise. As between defendants, there was a claim for affirmative relief. See Simon Hardware Co. v. Pacific Tire & Rubber Co., 199 Cal.App.2d 616, 19 Cal.Rptr. 12 (1962); Sattinger v. Newbauer, 123 Cal.App.2d 365, 266 P.2d 586 (1954). In the present case, Bennett has successfully prosecuted her affirmative claim that Alamo’s carrier has the primary coverage. Therefore, we hold, contrary to Ogur, that an order determining liability coverage in favor of a codefendant is a proper subject for an appeal under rule 9.130(a)(3)(C)(iv).

Motion denied.

SCHEB, C. J., and BOARDMAN, J., concur.

      . Appeals may be prosecuted in accordance with this rule ... from orders granting partial summary judgment on liability in civil actions . . .

      . This ruling would not conflict with the Scott, Kraver, and Becker cases, because in each of those cases, the order determining insurance coverage was made at the insistence of the plaintiff who under the rationale of Ogur would appear to be a party seeking affirmative relief.

      . The illustration would be even clearer in a case where the plaintiff did not initially join the defendant’s liability insurance carrier and the defendant filed a third party claim against the carrier which resulted in an order determining the existence of coverage and the duty to defend.


text:
    DOCTOR’S HOSPITAL OF HOLLYWOOD, INC., Appellant, v. Hunter W. MADISON and Minnie W. Madison, his wife, Appellees.
    No. 81-472.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.

      Mark Hicks of Daniels & Hicks and Mott-lau & Wakefield, P. A., Miami, for appellant.
    Larry Klein, West Palm Beach, and Rubin & Rubinchik, Hollywood, for appellees.
   ON MOTION TO DISMISS

PER CURIAM.

The appellant seeks review of an order denying a motion to vacate a default and the appellee has filed a motion to dismiss the appeal on jurisdictional grounds. The motion to dismiss is granted.

We adhere to our decision in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980) and certify that this decision is in direct conflict with Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3rd DCA 1981). Also see, Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979).

APPEAL DISMISSED.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    B. M. Z. CORPORATION, Appellant, v. CITY OF OAKLAND PARK, a Municipal Corporation, Appellee.
    No. 80-1651.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied July 7, 1981.
    William F. Zamer of Zamer & Holmes, Fort Lauderdale, and Marion E. Sibley of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellant.
    Lewis D. Haines, II, City Atty., and Gordon G. Cooper, Asst. City Atty., Oakland Park, for appellee.
   PER CURIAM.

Appellant seeks review of an order denying its motion to temporarily enjoin appel-lee from enforcing certain ordinances. We reverse.

Appellant, in its motion for temporary injunction and at the hearing thereon, relied on the allegations of its sworn complaint. The thrust of the complaint and of the argument at the hearing was that appellant has operated a night club in the City of Oakland Park, and that the enactment of ordinances to roll back the closing hours of night clubs from 4 a.m. to 2 a.m. on six days of the week and to 3 a.m. on Sundays was invalid because the procedure required by Section 18 of the City of Oakland Park Charter had been violated. Section 18 of the Charter provides, in pertinent part:

The affirmative vote of three (3) members shall be necessary to pass any ordinance on a reading, or adopt a resolution, and the passage of all ordinances and resolutions shall be taken by a “Yes and “No” and entered upon the minutes.

Appellant incorporated by reference in and attached to his verified complaint what he swore to be certified copies of minutes of the meetings at which the ordinances were enacted. These minutes only recited that on roll call all had voted in favor of the ordinances.

We agree with appellant’s argument that Nelson v. State, 83 So.2d 696 (Fla.1955) governs this case. In Nelson the court held the ordinances under attack had been improperly enacted when the charter of Panama City required that “passage of all ordinances and resolutions shall be taken by ‘Yeas’ and ‘Nays’ and entered upon the journal” and the minutes recited the ordinance was carried by a unanimous affirmative vote.

The City contends that the “minutes” to which appellant refers are only summaries of what occurred at the meetings and that the “official minutes” consist of the summaries and the recorded tapes of the meetings. Although counsel for appellee made this argument at the hearing, it was also incumbent upon appellee to state the facts under oath before the court could consider them.

Accordingly, we reverse the order which denied the motion for temporary injunction and remand to the trial court to order a temporary injunction after consideration of the issue of bond.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.

MOORE, J„ dissents without opinion.

      . The motion was filed and the order was rendered prior to January 1, 1981, the effective date of the amendments to Florida Rule of Civil Procedure 1.610.

      . Appellee included in its appendix an affidavit by the City Clerk supporting its contention. This affidavit was not presented to the trial court and cannot be considered by this court. In fact, it was executed a week after the trial court issued its order denying the temporary injunction.

      . We recently affirmed an order that denied a temporary injunction sought to prohibit the City from enforcing one of the two ordinances under review. However, in the previous case we noted: “The complaint in this case does not attack the procedures followed in the adoption of the ordinance in question.” Playpen South, Inc. v. City of Oakland Park, 396 S6.2d 830 (Fla. 4th DCA 1981).


text:
    STATE of Florida, Appellant, v. Robert Del REEHER and Paula Diane Witthaus, Appellees.
    No. 81-5.
    District Court of Appeal of Florida, Second District.
    June 24, 1981.
    Rehearing Denied Aug. 3, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellees.
   PER CURIAM.

Reversed. See State v. Benitez, No. 57,-834 (Fla., Feb. 12, 1981) rehearing denied (Apr. 13, 1981).

. SCHEB, C. J., and BOARDMAN and CAMPBELL, JJ., concur.


text:
    Thomas Leo COLLIER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1510.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Oct. 16, 1981.
    Rollins, Peeples & Meadows and William A. Meadows, Jr., South Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Appellant was convicted of burglary and grand theft and was sentenced to a term of fifteen years on the burglary conviction and five years on the grand theft conviction with credit for time served in jail prior to conviction.

It is appellant’s contention on appeal that the evidence was not sufficient to support his conviction. We cannot agree with appellant’s contention. Accordingly, the judgment and sentences are affirmed. E. Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Rodriguez v. State, 379 So.2d 657 (Fla. 3d DCA 1980), cert. denied, 389 So.2d 1114 (Fla.1980); Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978); Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972).

Affirmed.


text:
    March Banks WHITEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-728.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Oct. 12, 1981.
    Eimers & Jerome and Robert F. Eimers, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Raulerson v. State, 102 So.2d 281 (Fla. 1958); Wingert v. State, 353 So.2d 643 (Fla.3d DCA 1977); State v. Nova, 361 So.2d 411 (Fla. 1978).


text:
    Timothy L. COY, Appellant, v. STATE of Florida, Appellee.
    No. 81-960.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.

      Timothy L. Coy, Bushnell, pro se.
    No appearance on behalf of appellee.
   PER CURIAM.

Defendant’s motion for post-conviction relief was denied without a hearing. Moreover, the trial court failed to attach “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief.” Thus, we reverse and remand for an evidentiary hearing pursuant to Rule 3.850, Fla.R.Crim.P. See Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). The trial court must determine whether defendant’s plea bargained agreement was violated. If so, it may be appropriate that defendant be given an opportunity to withdraw his plea. See Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: COBB, Judge.

text:
    In the Interest of R.D.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 81-110.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant R.D.B. was adjudged delinquent and committed to the Department of Health and Rehabilitative Services (HRS) pursuant to section 39.11(3), Florida Statutes (Supp.1980). At the disposition hearing that preceded the order of commitment, the trial judge stated:

You have been adjudicated delinquent. There has been a disposition. Also note that he will be placed on Aftercare to the Court if he is released from the Department and that the Court would maintain jurisdiction of the case for restitution purposes. [Emphasis added].

The final order of commitment contained the following provision:

Child should be placed on Aftercare after release. Court retains jurisdiction for purpose of restitution.

Appellant’s counsel objected to the court retaining jurisdiction for restitution purposes, and timely appeals that portion of the trial court’s final order.

R.D.B. contends the trial court erred when, having ordered him committed to HRS, it retained jurisdiction to impose restitution. In support of his contention, appellant argues that Chapter 39 of the Florida Statutes authorizes the imposition of restitution only in the context of non-commitment, “community control” programs. Appellant’s position is that a court can commit a delinquent to HRS but, having done so, cannot also require the delinquent to make restitution. Section 39.11(l)(h) authorizes the trial judge to impose restitution “as part of the community control program.” Section 39.01(10) describes “community control” for purposes of Chapter 39:

“Community control” means the legal status of probation created by law and court order in cases involving a child who has been found to have committed a delinquent act. Community control is an individualized program where the freedom of the child is limited and the child is restricted to non-institutional quarters or restricted to the child’s home in lieu of commitment to the custody of the Department .... [Emphasis added].

Other sections of Chapter 39 refer to restitution in the context of community control. See §§ 39.09(3)(f); 39.10(2); 39.11(l)(a); 39.11(l)(a)l. Nowhere is restitution authorized as a condition of commitment to HRS.

We believe the appellant has constructed a straw man to knock down. We do not read the order as an attempt by the trial court to affirmatively impose a restitution requirement during the period of the commitment to HRS. The references to “aftercare” and “jurisdiction for purpose of restitution” obviously are coupled with the contingency of early release (/. e., before the age of 19) by HRS. Such authority on the part of the trial court is provided by section 39.11(3), Florida Statutes (Supp.1980), which requires HRS to give the trial court notice of discharge and provides:

The court which committed the child may thereafter resume personal jurisdiction of the child and make such orders for the aftercare supervision of the child as will be in the best interest of the child and for the protection of society.

Clearly, such an aftercare order may include restitution. We cannot but wonder whether the best interest of the child or the protection of society warrants the time and money herein expended to contend the incidental, not to say trifling, point raised by the instant appeal.

Affirmed.

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


text:
    James Perry ABLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-997.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 1981.
    Rehearing Denied Sept. 30, 1981.

      James Perry Abies, in pro. per.
    No appearance for appellee.
   COBB, Judge.

Appellant Abies filed a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged ineffective assistance of counsel. The trial court reviewed the record and then denied the motion without an evidentiary hearing. Abies has appealed that denial of his motion.

Since the motion was facially insufficient, we find the appeal to be without merit. However, in light of the number of these motions that are being filed alleging ineffective assistance of counsel, we believe that one of the grounds raised by Abies in his motion should be discussed.

In his motion to vacate, Abies alleged that:

I advised my Attorney of a number of witnesses that had testimony for the de-fence. Mr. Chester did not talk nor Subpoena any of my said witnesses.

A similar allegation was raised in the case of Clements v. State, 340 So.2d 1182 (Fla. 4th DCA 1976). In Clements, the court stated that the motion to vacate was inadequate because:

There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be. There is nothing in the motion to show admissible evidence would be forthcoming from the witnesses. Hence, there is no showing before this Court of a causal relationship between the failure to obtain the testimony at trial of these witnesses (the alleged incompetence of counsel) and the defendant’s conviction.
The trial court should not have to speculate as to the nature of this testimony when it is asked to grant an evidentiary hearing.

340 So.2d at 1183.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Lee A. MILLS, Appellant, v. Alfred ARONOVITZ and Bernard B. Weksler, d/b/a Aronovitz and Weksler, Appellees.
    No. 80-1190.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Oct. 16, 1981.

      Mills, Hodin & London and Minervino Rodriguez, Jr., Miami, for appellant.
    Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellees.
    Before HUBBART, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Aronovitz and Weksler brought suit against Mills alleging that they rendered legal services to Mills for which he agreed to pay, but did not. After a non-jury trial, the lower court entered judgment for the plaintiff-lawyers in the amount of $17,500 plus certain costs. Finding the amount of attorneys’ fees, which Mills asserts is excessive, to be fully justified by the evidence, and finding the costs, which Mills asserts were unnecessary, to be proper, Fatolitis v. Fatolitis, 271 So.2d 227 (Fla.2d DCA 1973), we affirm this judgment.

We turn now to Aronovitz and Wek-sler’s cross-appeal from the trial court’s refusal to tax as costs expert witness fees for two attorneys who testified on behalf of the plaintiffs to the reasonable value of the legal services rendered by Aronovitz and Weksler to Mills. We reverse this ruling of the trial court, holding that Aronovitz and Weksler, as the prevailing plaintiffs, were entitled to recover, as costs, reasonable expert witness fees for the attorneys who testified to the worth of the services rendered by the plaintiffs.

In our view, this result is dictated by Section 90.231(1), Florida Statutes (1977). This statute defines the expert witness entitled to fees to be taxed as costs as a witness who, inter alia, “offers himself in the trial of any civil action.” Clearly, the testimony of the expert witnesses in the present case was offered in the trial of this civil action for attorneys' fees, and it is for that precise reason that the plaintiffs were entitled to have the fees of these experts taxed as costs. Of course, a civil action for attorneys’ fees is not the only action in which one may recover as costs expert witness fees for testifying attorneys. In any case where the expert attorney-witness is called upon to testify in respect to a matter at issue in the case, as, for example, where the attorney-expert is needed to testify on the issue of whether the insurer was prejudiced by the failure of the insured to give it prompt notice of the accident, see Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969), the fees expended are recoverable costs. But where, as in Plever v. Bray, 266 So.2d 54 (Fla.3d DCA 1972), the attorneys’ fees sought are incident to an underlying suit to establish paternity, or as in Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla.3d DCA 1971), incident to a judgment under an uninsured motorist provision of an insurance policy, and the testimony of attorney-experts is offered not as part of the trial, but in proceedings collateral to trial, the statute does not authorize expert witness fees to be taxed as costs. Cf. Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968) and Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967) [holding under the analogous workers’ compensation statute, Section 440.-31, Florida Statutes (1967), which authorizes fees to “any expert witness . .. who shall have testified in any proceeding under this chapter,” that the recovery of expert witness fees is restricted “to proceedings for compensation to claimant rather than proceedings, essentially collateral, for determination of the amount of attorneys’ fees . . .,” 200 So.2d at 804 (emphasis supplied)].

Our holding is perfectly compatible with Lee Engineering, Robert & Company Associates, Plever and Chastain, which hold that where the expert attorney-witness is called upon to prove the value of an attorney’s services in a proceeding collateral to the trial itself, expert attorney-witness fees are not recoverable costs. We pause to emphasize the continued vitality of the latter line of cases because of our concern that the costs of litigation are fast becoming, if they are not already, prohibitive. Were the attorney’s fee issue an adjunct to the suit proper, and were the statute therefore not controlling, we would be quick to affirm the trial court on the authority of Plever and Chastain, and the analogous holdings of Lee Engineering and Robert & Company Associates. While admittedly we, the courts, have imposed the requirement of expert testimony as a predicate to the collateral award of attorneys’ fees, see, e. g., Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964), we did so to protect litigants, not to add to the burgeoning costs of litigation :

“There is but little analogy between the elements that control the determination of a lawyer’s fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation.”

Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1936). Therefore, we hold that Section 90.231, Florida Statutes (1977), authorizes expert witness fees to be taxed as costs only where the expert witness is called upon to prove any matter at issue in trial.

The ruling of the trial court refusing to tax as costs the witness fees for attorneys who testified as experts on the value of the plaintiffs’ services is reversed and the cause remanded for proceedings consistent with our opinion.

Affirmed in part; reversed in part, and remanded.

BASKIN, Judge

(specially concurring).

While I concur in the result expressed in the majority opinion, I cannot accept its arbitrary limitation of the award of expert witness fees to attorneys who testify in trial concerning the value of legal services performed by other attorneys. Section 90.-231(2), Florida Statutes (1977) allows fees to expert witnesses who testify “in any cause.” To hold that an attorney is an expert witness whose fees a party may recover only when the attorney testifies during trial, but not when his testimony is elicited during a post-trial hearing, is to engage in an unrealistic and naive exercise. Attorneys are not precluded from charging fees, but the successful litigant is unable to recover the cost of providing the court with required expert testimony.

If, as the majority opinion states, it is attempting to reduce legal costs, it does so at the expense of litigants. The majority opinion does not reduce the cost; it merely shifts the burden and creates an additional obstacle to the public’s access to its courts.

Except for workers’ compensation cases, Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968) and Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967), section 90.231 does not exclude attorneys from its provisions. In Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969), a case arising from an insurance claim, the supreme court stated:

We see no reason why an attorney who is brought into a case to testify as to matters of professional expertise should be deprived of a fee commensurate with fees given to other .expert witnesses, when he is questioned, not only as a participant in a prior proceeding, but also as an expert to whom hypothetical questions are directed. A review of the record demonstrates that both petitioners’ and respondent’s attorneys recognized these witnesses as expert and questioned them accordingly. Therefore, we think the trial court erred in not granting the fees requested as costs to be assessed against the respondent.

222 So.2d at 210. I would therefore adopt Judge Hendry’s dissent in Plever v. Bray, 266 So.2d 54 (Fla.3d DCA 1972) and recede from those opinions which conflict with the principles iterated in Tiedtke.

      . The plaintiffs sought $250.00 as an expert witness fee for each of their attorney-experts. The reasonableness of this amount was not at issue below and is not at issue here.

      . Section 90.231 in its entirety provides:
      “Expert witnesses; fee.—
      “(1) The term ‘expert witness’ as used herein shall apply to any witness who offers himself in the trial of any civil action as an expert witness or who is subpoenaed to testify in such capacity before a state attorney in the investigation of a criminal matter, or before a grand jury, and who is permitted by the court to qualify and testify as such, upon any matter pending before any court.
      “(2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.”
      Section 90.231 has been transferred, without change, to Section 92.231. Ch. 76-237, § 3, Laws of Fla.

      . The author of the special concurring opinion asserts that our limitation on taxing costs for expert witness attorneys is “unrealistic and naive,” since it does not reduce the expense of litigation, but will merely impose upon the successful litigant the burden of this expense. Apparently, the author’s worldliness does not embrace the long standing and notorious practice of attorneys testifying as experts for one another without charge, a practice that presently results in no expense to the successful litigant, but a practice that most assuredly would come to a screeching halt were we to hold that the losing party had to pay.