text:
    Bill MUNCEY, d/b/a Bill Muncey Industries, Appellant, v. STAR BRITE DISTRIBUTORS, INC., Appellee.
    No. 79-1235.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Garber & Buoniconti, Miami, for appellant.
    Rollnick, Squitero & Katz and Marc L. Faust, Miami, for appellee.
    Before HAYERFIELD, C. J., and PEARSON and NESBITT, JJ.
   PER CURIAM.

The trial court erred in, sua sponte, entering a summary final judgment against the plaintiff, where there was no motion pending therefor and the plaintiff had no notice or opportunity to present opposing affidavits. Fla.R.Civ.P. 1.510; Moseley v. Bi-Lo Supermarket, Inc., 341 So.2d 222 (Fla. 3d DCA 1976); and Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla. 3d DCA 1961). The cases of Roberts v. Braynon, 90 So.2d 623 (Fla.1956) and Raphael v. Koretzky, 102 So.2d 746 (Fla. 3d DCA 1958) relied upon by the defendant are distinguishable because they represent a well defined line of cases which authorize the trial court to initiate and entertain summary judgment at pre-trial conference.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ben D. WILDER and Loretta S. Wilder, his wife, Theodore R. Naumann and Shirley Naumann, his wife, Appellants, v. MEL ENTERPRISES, INC., a Florida Corporation, etc. et al., Appellees.
    No. 79-1266.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Roger A. Bridges, Coral Gables, for appellants.
    Robert D. Korner, Coral Gables, for ap-pellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Ogle v. Pepin, 253 So.2d 270 (Fla. 4th DCA 1971); and Jonas v. Bar-Jam Corp., 170 So.2d 479 (Fla. 3d DCA 1965). See also Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla. 1st DCA 1977).


text:
    Rosalinda Sanzo COSTEA, Appellant, v. Anthony James SANZO, Appellee.
    No. 79-1534.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Alan Jay Braverman and David F. Holmes, Fort Lauderdale, for appellant.
    Herman Cohen, Miami, for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We conclude that the trial court erred in granting the appellee-husband a $2,300 credit so as to reduce to $1,000, the amount he owed in accrued past-due child support payments, the right to which had become vested in the wife. Hynes v. Hynes, 277 So.2d 557 (Fla. 3d DCA 1973); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971); see Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974), and cases cited; cf. Gottesman v. Gottesman, 220 So.2d 640 (Fla. 3d DCA 1969). Upon remand, paragraph 7 of the order under review shall be amended to adjudicate an arrearage of $3,300.

Because the wife presented no evidence either of the value of counsel’s sérvices or of her existing need, the denial of her claim for attorney’s fees below is affirmed. Schwebke v. Schwebke, 347 So.2d 645 (Fla. 3d DCA 1977); Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977).

Affirmed in part, reversed in part and remanded.


text:
    Christopher DRAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2253.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Cristopher Drayton, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ:
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Ralph Hunter HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1035/NT4-64.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

One of appellant’s points on appeal was whether the trial court erred in sentencing appellant without ordering a presentence investigation when prior felony convictions (Fla.R.Crim.P. 3.710) were not established.

After oral argument it was ordered that jurisdiction of the cause be relinquished to the trial court for the purpose of holding an evidentiary hearing to determine whether appellant had been convicted of a prior felony at the time he was sentenced so as to obviate the necessity of obtaining a presen-tence investigation report prior to sentencing appellant, the trial court to enter a written order containing its findings and to furnish this Court with a copy of said order and a transcript of the evidentiary hearing.

We have now received the transcript and the order and have examined them. It appears from the evidence before the trial court and its findings that appellant had been convicted of a prior felony at the time he was sentenced, and thus it was not mandatory for the trial court to order a presen-tence investigation report.

Appellant’s other points have been considered and no error has been found.

Affirmed.

DOWNEY, JAMES C., ANSTEAD, HARRY LEE and WARREN, LAMAR, Associate Judges, concur.


author: ANSTEAD, HARRY LEE, Associate Judge.

text:
    Marshall Wayne HOWARD, husband, Appellant, v. Pauline HOWARD, wife, Appellee.
    Nos. 78-1534/NT-65, 78-1535/NT-65A.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Devo A. Heller of Brinson, Smith & Heller, P.A., Kissimmee, for appellant.
    Sydney J. Steinberg of Greater Orlando Area Legal Services (Kissimmee Branch), Kissimmee, for appellee.
   ANSTEAD, HARRY LEE, Associate Judge.

This appeal by the husband challenges a judgment of the trial court granting custody of the parties’ child to the wife.

The parties were married in Kentucky on August 8,1976, and a child was born of the marriage on April 13, 1977. While on a working vacation in Florida in December of 1977, the parties separated; the wife and infant remaining with her parents in Florida, where she had previously resided prior to the marriage, and the husband returning to Kentucky. On January 20, 1978, the husband filed an action for divorce and sought custody of the parties’ minor child. Although no personal service was made on the wife, she received actual notice of the proceedings, including communications from a “Warning Order Attorney” appointed by the Kentucky court, who advised her that the Kentucky court lacked jurisdiction over the custody issue. The wife’s Florida counsel thereafter advised her not to participate in the Kentucky proceedings.

On March 29, 1978, the wife filed a petition for separate maintenance in the Circuit Court in Osceola County, which in part sought temporary and permanent custody of the minor child. On May 4, 1978, the Kentucky court entered its judgment which granted a divorce and awarded custody of the child to the husband. On June 9, 1978, the husband filed a certified copy of the Kentucky judgment with the Clerk of the Florida court, and on June 12 he filed a petition for writ of habeas corpus seeking custody of the child pursuant to that judgment. The trial court proceeded simultaneously on the writ of habeas corpus and the request for temporary custody in the separate maintenance action and a hearing was held at which both husband and wife were present. Following testimony from the parties and other witnesses, the trial court determined that it had jurisdiction and was not bound by the prior Kentucky decree as to the custody issue and awarded the wife custody of the child.

Florida has adopted the Uniform Child Custody Jurisdiction Act, Sections 61.-1302-61.1348, Florida Statutes (1977). Section 61.1328 provides in essence that a court of this state shall recognize the custody decree of another state which acquired jurisdiction of the custody issue. That provision, of course, is subject to a finding that the other state had jurisdiction to enter the original decree. On the basis of the record before this court it appears that the Kentucky court lacked jurisdiction to enter a custody decree.

It undisputed here that the child was residing in Florida when the husband commenced the Kentucky proceedings. Although Kentucky has adopted some provisions of the Uniform Act, the jurisdictional provisions of Section 61.1308(l)(a)(2), Florida Statutes (1977), defining the “home state” of the child and relied on herein by the husband, are entirely different from the provisions enacted in Kentucky. Under Kentucky law it would have been necessary for the child to have resided in Kentucky at the commencement of the action for the Kentucky court to acquire jurisdiction as the “home state” of the child. Gaines v. Gaines, 566 S.W.2d 814 (Ky.Ct. Appeals 1978). The husband asserts that the Uniform Act requires Florida courts to recognize the Kentucky decree if the jurisdictional standards set out in the Uniform Act as adopted in Florida are met regardless of the fact that the custody decree is invalid under Kentucky law. We disagree.

There is nothing in the Uniform Act which precludes a party from challenging the jurisdiction of a court entering a custody decree. It would be anomalous indeed for this court to now hold that while Kentucky would not itself uphold its own decree, Florida courts must apply the more liberal jurisdictional test provided in Florida’s version of the Uniform Act and enforce the Kentucky decree. This is especially so in light of the fact that the wife was specifically advised by the attorney appointed by the Kentucky court that it would not be necessary for her to participate in the Kentucky proceedings because Kentucky lacked jurisdiction to award custody.

The record also supports the trial court’s finding that it had jurisdiction under the Uniform Act. The trial court concluded that jurisdiction vested in Florida under Section 61.1308(l)(b) which provides:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
* * * * # *
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

The record establishes that the child and wife have a significant connection with Florida. The child has resided in this state for four months and there is no contrary indication that he won’t continue to be raised in this state. The mother, presently a community college student, has resided in this state with her parents most of her life, met her husband in this state, and after a period of less than two years of married life in the husband’s home state of Kentucky, has once again, with her child, established residence in this state. There is also substantial evidence available in this state and presented at trial concerning the child’s present and future care, protection, training, and personal relationship. The child is currently being raised by the wife and her family, who reside in Osceola County. Furthermore, the husband himself has made frequent visits to this state, including the working vacation preceding the separation. In addition he was present and testified at the custody hearing.

There is no evidence in the record and it is not claimed by the husband that the wife had in any way acted improperly in securing custody of the child as contemplated by Section 61.1318 of the Act. Section 61.1318 authorizes the trial court to decline to take jurisdiction where one parent has “improperly” removed the child from another jurisdiction.

While we agree that Florida courts are bound under the act to refrain, except in certain exceptional circumstances, from modifying another state’s custody decree if that state has jurisdiction over the custody issue, we conclude that such prohibition is not applicable here where it appears that Kentucky lacked jurisdiction to enter the' original decree. Accordingly, the two custody orders on.review are hereby affirmed.

MOORE, JOHN H., II, and WARREN, LAMAR, Associate Judges, concur.


text:
    Glen Jerome WILLARD, a/k/a Glen Jerome Woulard, Appellant, v. STATE of Florida, Appellee.
    No. 77-2607.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Jerry Oxner, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Marc E. Kirk and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    Edgar Roger McDANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1068.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Edgar R. McDaniel, in pro. per.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MOORE, J., and DAUKSCH, JAMES C., Jr., and CROSS, SPENCER C., Associate Judges, concur.


text:
    Michael Ervin KIDDY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1207.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Robert Augustus Harper, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was convicted of possession of cannabis in excess of one hundred pounds. Initially, appellant contends that the information filed against him was defective and that the trial court erred in denying his motion to dismiss. We believe the information, which cited the specific section of the statutes involved, was sufficient under our holding in Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972).

Appellant also contends that the trial court erred in admitting into evidence substantial quantities of cannabis which, according to appellant, were seized as a result of an illegal roadblock stop and two subsequent illegal searches. However, our review of the record reflects an adequate evidentiary basis for the trial court’s finding that the initial search of appellant’s vehicle was conducted with his consent. See St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978). In addition, although appellant complains of a second search of certain sealed boxes found to contain cannabis, the trial record contains evidence indicating that numerous bales of cannabis in an amount sufficient to sustain appellant’s conviction were also found- in appellant’s vehicle. We also note that the trial transcript fails to demonstrate that the appellant renewed his objections to the evidence at trial after his earlier motions to suppress were denied. For that reason, appellant has failed to preserve such objections for appellate purposes. Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978).

We have reviewed the other points raised by appellant and find no merit therein. Accordingly, the judgment and sentence are hereby affirmed.

ANSTEAD and LETTS, JJ., and POWELL, ROM, Associate Judge, concur.


text:
    Richard CHRISTENSEN, Appellant, v. Myra CHRISTENSEN, Appellee.
    No. 78-1859.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Barry Roderman and Bernard Berman, Fort Lauderdale, for appellant.
    William M. Wittman and Robert D. Kor-ner, Coral Gables, for appellee.
   PER CURIAM.

Affirmed.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    Dr. Peter J. H. WALKER, a/k/a Dr. J. H. Prohaska, and Louise A. Walker, a/k/a Louise A. Prohaska, Appellants. v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF FORT LAUDERDALE, a national banking institution, Appellee.
    No. 78-2548.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 29, 1980.
    Dr. Peter J. H. Walker and Louise A. Walker, pro se.
    Thomas A. Groendyke, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

BERANEK, HERSEY and HURLEY, JJ., concur.


text:
    Okey Randolph KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2582.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    Dale ROCHE, Appellant, v. Joan BARBARO, Appellee.
    No. 79-683.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Howard B. Bischoff, Fort Lauderdale, for appellant.
    Bruce L. Randall, Fort Lauderdale, for appellee.
   HERSEY, Judge.

Appellee, Barbaro, filed a verified replev-in complaint seeking recovery of certain tangible personal property, compensatory damages and punitive damages. The writ of replevin issued and appellant, Roche, posted a forthcoming bond in the amount of $2,500.00. The matter went to final hearing before the court without a jury and, on January 30, 1979, final judgment was entered, the pertinent portion of which, for purposes of this appeal, is as follows:

That Judgment be and the same is hereby rendered for the Plaintiff, JOAN BAR-BARO, and against the Defendant, DALE ROCHE, in the principal sum of $2,598.00, plus Court costs in the sum of $165.00, for a total of $2,763.60.

Appellant’s appeal from the final judgment is based upon the failure of the trial court in the final judgment to separately find the value of each item of tangible personal property.

By virtue of the forthcoming bond posted by appellant, the items of tangible personal property in controversy remain in her possession. Accordingly, the final judgment in favor of plaintiff appellee is necessarily controlled by Section 78.19, Florida Statutes (1977). That section provides:

78.19 Judgment for plaintiff when goods retained by or redelivered to defendant.—
(1) If it appears that the property was retained by, or redelivered to, defendant on his forthcoming bond, plaintiff shall take judgment for the property and against defendant and the surety on the forthcoming bond for the value of the property, but when plaintiff’s interest in the property is based on a claim of lien or some special interest therein, the judgment shall be only for the amount of the' lien or the value of such special interest and costs, and the judgment shall be satisfied by the recovery of the property or the amount adjudged against defendant and his surety.
(2) After rendition of judgment, plaintiff at his option may have a writ of possession for the property and execution for his costs or have execution against defendant and his surety for the amount recovered and costs. If he elects to have a writ of possession for the property and the officer returns that he is unable to find it or any of it, plaintiff may immediately have execution against defendant and his surety for the whole amount recovered against them or for the amount recovered less the value of the property found by the officer. If he has execution for the whole amount, the officer shall release all property taken under the writ of possession.
(3) In any proceeding to ascertain the value of the property so that judgment for the value may be entered, the value of each article shall be found but it is not necessary to ascertain the value of each article of a lot of goods, wares and merchandise when it has been replevied, but it is sufficient to ascertain the total value of the entire lot found.

An early case, Stokes v. Humphries, 69 Fla. 468, 68 So. 448 (1915), interpreting the predecessor to the statute, held that:

This provision of the statute contemplates that, except in case of “a lot of goods, wares and merchandise,” “the value of each article shall be found,” “so that judgment for such value may be entered” separately as to each article of property adjudicated in the proceeding.

The final judgment must therefore contain a listing of the separate values of each item of tangible personal property involved, unless the court finds that the items constitute “a lot of goods, wares and merchandise.”

In addition, the final judgment is required by the statute to be in the alternative. The judgment should award to plaintiff appellee the property which has been wrongfully detained and, in addition, should award an amount equal to the value of the property wrongfully detained. The plaintiff appellee then has the option of taking the property or that increment of the damages award representing the value of the property.

We note that the judgment awards a principal sum to appellee, without any indication as to whether that sum represents the value of the items of tangible personal property, or damages for the wrongful retention, or a combination of both. The judgment is deficient in that respect and, on remand, the trial court should specify to what extent the sum to be recovered represents value and to what extent damages for the retention.

For the foregoing reasons, we reverse and remand this cause to the trial court for further proceedings consistent with our holding.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


text:
    Caesar MAUTI, Appellant, v. Aubrey Frank LOWE and Atlantic Insurance Agency, Inc., Appellees.
    No. 79-867.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Jeff Tomberg of Tomberg & Tomberg, Boynton Beach, for appellant.
    Gilbert E. Theissen of Gerald M. Walsh and Associates, P. A., Fort Lauderdale, for appellee Atlantic Ins. Agency, Inc.
   PER CURIAM.

AFFIRMED.

LETTS, HERSEY and GLICKSTEIN, JJ., concur.


author: RYDER, Judge.

text:
    CLEVELAND COMPANIA MARITIMA, S. A. PANAMA, a Foreign Corporation, Appellant, v. Pantelis LOGOTHETIS, Appellee.
    Nos. 79-770, 79-782.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1980.

      Nathaniel G. W. Pieper of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant-petitioner.
    W. H. Beckham, Jr., and Joel D. Eaton of Podhurst, Orseck & Parks, P. A., Miami, and Wagner, Cunningham, Vaughan & Genders, P. A., Tampa, for appellee-respon-dent.
   RYDER, Judge.

Cleveland Compania Marítima, S.A. appeals the denial of its motion to dismiss or transfer due to improper venue, alleging the court erred in finding venue to be proper in Hillsborough County. We affirm.

Appellant is a Panamanian corporation residing in Greece, whose ship, the Sao Pau-lo, conducts an essentially United States business trading between east coast ports in the U.S. and South America. Appellant operates through a Greek general agent, George Roussos Sons, S.A. The Sao Paulo was chartered by a Norwegian corporation, Ivarans Rederi, S.A. on a renewed three year charter. The captain stated that the ship had been chartered to Ivarans lines since it was built in Norway in 1959. The detailed charter agreement provides essentially that appellant maintain the ship and crew, while Ivarans directs the ship’s schedule and cargo. The agreement appoints the captain, an employee of appellant, to be under the orders of. the charterers “as regards employment and agency.” The agreement also appoints Ivarans to act as agent for appellant in regard to cargo claims and resultant legal proceedings.

Appellee, a Greek seaman and employee of appellant, was injured while the Sao Paulo was unloading at Boca Grande, Lee County, Florida. He brought a multi-count action in Hillsborough County Circuit Court, alleging that appellant was a corporation doing business in Hillsborough County, Florida.

The parties submitted several affidavits in support of their positions on the venue motion. Stavros Roussos, president of appellant’s general agent, George Roussos Sons, S.A., stated that his firm maintains no offices in the United States. Iakavos Roussos, an officer of appellant, stated that his firm had transacted no business in the United States, and has no business office, base of operation, nor agents in the United States. Karl Liebig, manager of Interore Shipping in Tampa, stated that the Sao Paulo was in Tampa in July 1977 and April 1978, and in Boca Grande in July 1978. Liebig stated that Interore was engaged to act and paid on each of these occasions by Ivaran Line, and had never been engaged to act for appellant or George Roussos Sons. On deposition, Liebig stated that his firm was agent for the Sao Paulo when it stopped on Florida’s west coast. The normal ports of call in the United States for the Sao Paulo, according to Liebig, were New York and Miami.

Appellee produced an open letter from George Roussos Sons, S.A. given to his brother to apparently assist him in obtaining entry to the United States to visit ap-pellee in the hospital after the accident. The letter states that Roussos’ agent at Tampa is Interore Shipping Corporation. Appellant admitted in response to a request for admissions that the Sao Paulo was in Miami in September 1978.

We initially note that as the party challenging venue, appellant had the burden of proof below to show venue was improper in Hillsborough County. Velez v. Mell D. Leonard & Associates, Inc., 338 So.2d 896 (Fla.2d DCA 1976). Findings of the lower court resolving conflicts in evidence, which are supported by competent evidence will not be disturbed on appeal. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla.1st DCA 1962). See Lovings v. Seaboard Coastline Railroad Co., 340 So.2d 1279 (Fla.3d DCA 1977); Jacquin-Florida Distilling Co. v. Reynolds, Smith & Hills, Architects-Engineers-Planners, Inc., 319 So.2d 604 (Fla.1st DCA 1975).

Section 47.051, Fla.Stat. (1977), provides that “Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, or where the cause of action accrued, or . .” The general venue statutes fail to provide any venue privilege for foreign corporations not doing business in the state, and such action may be brought in any county where jurisdiction can be secured. Hollywood Memorial Park, Inc. v. Rosart, 124 So.2d 712 (Fla.3d DCA 1960). Thus, the lower court’s finding of venue in Hillsbor-ough County may be upheld if there is competent evidence either that appellant was not doing business in Florida, or that appellant was doing business in Florida and had an agent or representative in Hillsbor-ough County.

We are not able to find authority interpreting the phrase “doing business” in Section 47.051. We note that a similar phrase, “operates, conducts, engages in, or carries on a business or business venture,” appears in Section 48.193, the Florida long-arm statute. We have previously interpreted “doing business” in a predecessor long-arm statute to take Florida long-arm jurisdiction to the farthest extent permitted by the “minimum contacts” standard consistent with federal due process. Lake Erie Chemical Company v. Stinson, 181 So.2d 587 (Fla.2d DCA 1966). Federal courts have held minimum contacts sufficient to justify state jurisdiction over a shipowner whose vessel delivered cargo to New York, whose “doing business” statute gave jurisdiction over foreign corporations who “transact any business within the state.” Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205 (2nd Cir. 1970). We realize that doing business under the Florida long-arm statute may not be enough to constitute doing business under the statute providing substituted service of process on the secretary of state. See Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975). We decline, however, to decide if “doing business” under the venue statute is equal to carrying on- a business under either the jurisdiction or service statutes, since we hold that competent evidence would support the lower court’s finding of doing business under either standard. The Sao Paulo, owned and operated' by appellant, regularly stopped in Miami, and stopped on the west coast of Florida three times in the two years before the accident. We reject the possibility that the lower court found appellant was not doing business in Florida, as the above evidence would not support this result.

Since appellant was doing business in Florida, we must determine if competent evidence supports a finding that appellant had an agent or representative in Hillsbor-ough County. Liebig testified that Interore was agent for the Sao Paulo. All parties admitted that Interore was agent for Ivar-ans Rederi. The charter agreement established that Ivarans was appellant’s agent for cargo claims. Appellant and George Roussos Sons stated that Roussos was agent for appellant. Roussos represented in an open letter that its agent in Tampa was Interore. Thus, the evidence indicated that Interore was agent of appellant’s agent Roussos, agent of appellant’s limited agent Ivarans, and agent for the appellant’s ship, the Sao Paulo.

A question of agency is one of fact to be determined by the trier of fact. Bernstein v. Dwork, 320 So.2d 472 (Fla.3d DCA 1975). The factfinder may find agency on circumstantial evidence, and may do so even when both principal and agent deny the relationship. McCabe v. Howard, 281 So.2d 362 (Fla.2d DCA 1973). There are obvious contradictions in the evidence presented, but we find the facts above to be competent evidence that appellant had an agent or representative, Interore Shipping, in Hillsborough County.

Since there is competent evidence to support a finding of venue in Hillsborough County, we affirm the trial judge’s conclusion that appellant failed to meet its burden below of showing improper venue.

In consolidated case # 79-782, we decline to grant certiorari.

GRIMES, C. J., and BOARDMAN, J., concur.


author: GRIMES, Chief Judge.

text:
    STATE of Florida, Appellant, v. Carroll Julian BAXTER and Timothy Brian Hamilton, Appellees.
    Nos. 79-1045, 79-1173.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jack T. Edmund, Bartow, for appellee Baxter.
    Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellee Hamilton.
   GRIMES, Chief Judge.

By this appeal, the state challenges the standard used by the trial court in granting the defendants’ motions to suppress.

The state filed an information charging defendants Baxter and Hamilton with burglary and grand theft. Thereafter both defendants filed motions to suppress evidence, and defendant Hamilton also filed a motion to suppress a confession. At the hearing on these motions, Polk County Sheriff’s Deputy Merle Bullard testified that while on patrol he had spotted the two defendants driving a truck through rural Polk County in the early hours of March 2, 1979, under what he considered to be suspicious circumstances. He stopped them, and after further investigation which produced Hamilton’s confession, he arrested them. Following Bullard’s testimony, the court heard argument and granted the motions, solely on the ground that the stop of the defendants had been illegal.

It is evident from statements which the judge made at the hearing that he believed that the issue before him was whether Deputy Bullard had probable cause to make the stop. The state contends that in applying a probable cause standard the court erred. We agree. In determining whether a law enforcement officer may legally stop a motor vehicle for investigation in a particular situation, the question is not whether the officer had probable cause but whether there were circumstances which would give rise to a “well-founded suspicion” of criminal activity. State v. Bastardo, 347 So.2d 463 (Fla.2d DCA 1977); State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977).

Accordingly, as we did in Payton and Bastardo, we reverse the order of the trial court and remand the case for reconsideration of the evidence under the appropriate legal standard.

HOBSON and SCHEB, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    TROPIC SUN NURSERY/Florists Mutual Insurance, Appellants, v. Leona M. CROWE, Appellee.
    No. QQ-217.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1980.
    William L. Contole, of Brennan, McAliley,. Hayskar & McAliley, West Palm Beach, for appellants.
    Fred H. Gelsten, of Tucker & Slawson, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    TANGIERS MOTEL and Old Republic Insurance Company, Appellants, v. Connie CLARK, Marti Palimino d/b/a Riviera Coffee Shop and American Mutual Insurance Company, Appellees.
    No. QQ-220.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1980.
    Guy M. Junger, of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellants.
    Donald F. Harrington, of Harrington & Willis, Miami, for appellee, Palimino.
    Michael P. MaGuire, of MaGuire & Friend, Miami, for appellee, Clark.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Aileen TORRES, Appellant, v. SPEEDLINE ATHLETIC WEAR, INC. and American States Insurance Company, Appellees.
    No. QQ-261.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1980.
    Edward D. Carlson, of Carlson, Meissner & Webb,- Clearwater, for appellant.
    John G. Thompson and Patrick J. Murphy, of Earle, Yanchuck & Thompson, St. Petersburg, for appellees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Paul D. KUFRIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-276.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Bennett H. Brummer, Public Defender, Warren S. Schwartz, Asst. Public Defender, and Robin Greene (Legal Intern), for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

      Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Kufrin appeals from a judgment and sentence rendered against him after a jury found him guilty of sale of LSD. We reverse for a new trial because the trial judge erroneously restricted the scope of the cross examination of a prosecution witness.

At trial, undercover narcotics agent Charles Hitchens testified that on March 15, 1977, he had purchased from Kufrin 10 LSD tablets. Kufrin took the stand and denied selling Hitchens the tablets.

On cross examination Hitchens was asked whether, prior to March 15, 1977, he had discovered that Kufrin had “information as to the fact that [Hitchens was] a narcotics agent”. Hitchens responded that he did not have any information. Defense counsel then sought to inquire whether he had such information “at a later time on March 27 . . . ” The trial judge disallowed this line of cross examination basing his ruling on a prosecution motion in limine granted prior to trial. This motion sought to prohibit testimony concerning an arrest and abduction of Kufrin occurring on March 27,1977 in which abduction Hitchens participated. At the hearing on the motion in limine, defense counsel argued that such arrest and abduction were made in retaliation for Kufrin’s act of “blowing” Hitchens’ cover as a narcotics officer.

On direct examination Kufrin testified that he had “blown” Hitchens’ cover prior to March 15, 1977. Kufrin later proffered testimony establishing that Hitchens knew that his cover was blown when he abducted and arrested Kufrin on March 27, 1977. This proffer was denied again based on the motion in limine.

Kufrin argues that if Hitchens’ cross examination had not been restricted he would have been able to show that Hitchens’ personal interest and bias against him extended back to March 15th and served as a motive of the officer’s actions on that date. We feel that such evidence of interest and bias would have gone to the veracity of Hitchens’ testimony and should have gone to the jury.

We hold that the trial judge committed reversible error by improperly restricting the scope of the cross examination of Hitchens. The exposure of a witness’ motivation in testifying is a proper function of the constitutionally protected right of cross examination. Holt v. State, 378 So.2d 106 (5th DCA 1980). Bias or prejudice of a witness has an important bearing on his credibility and evidence tending to show such bias is relevant. Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976). Any evidence which tends to establish that a witness is appearing for the state for any reason other than merely to tell the truth should not be kept from the jury. Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1979); Holt v. State, supra.

Although we find no error in the remaining points raised by Kufrin, the judgment below is, for the foregoing reasons, reversed and the cause remanded for a new trial.

      . Charges stemming out of the March 27th arrest were nolle prosequied. The information in the instant case was filed on April 20, 1977.

      . If this were true, then Hitchens very well might have had a reason and motive for wanting to remove Kufrin from the streets.


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    Richard HICKS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-310.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 6, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

The appellant, having been informed against for the crimes of robbery and unlawful possession of a firearm while engaged in a criminal offense, filed notice of alibi and had, prior to trial (pursuant to Fla.R.Cr.P. 3.200) filed a motion to compel the State to furnish him with a list of rebuttal witnesses.

At the time of trial, the appellant’s alibi was that at the time of the criminal offense (February 11,1976) he was home participating in a party being given in his honor. His only alibi witness was Alberta Stanley, who testified that she arrived at home at approximately 3:30 P.M., having gotten off work at approximately 3:15 P.M. from North Dade Hospital, and that there was a party on February 11, 1976 for the defendant. The evidence had previously indicated that the robbery occurred at approximately 3:30 P.M.

After the defense rested, the State, in rebuttal, called Jiminez Suarez as a witness. Suarez testified that he was records custodian at North Dade Hospital and, on February 11, 1976, Ms. Stanley did not work there. Defense counsel objected to any rebuttal testimony on the ground that the State had failed to comply with the demand for a list of rebuttal witnesses. Fla.R.Cr.P. 3.200 provides that the State shall file the names of witnesses the State proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause. The prosecutor argued, however, that the witness he desired to call [Suarez] would not rebut Hicks’ alibi that he was at the party, but would, rather, question Ms. Stanley’s credibility. The trial judge examined Fla. R.Cr.P. 3.200 and permitted the prosecution to call the witness, but indicated that he would be careful to exclude any testimony that went directly to the defendant’s alibi as opposed to the credibility of the alibi witness. In denying defense counsel’s motion for mistrial, the court reasoned:

“The defendant’s alibi was that he was at his mother’s house at a party. As proof of that, his sister testified that she was at the house after work. Her testimony was that she got off from work at North Dade Hospital and came there immediately following her shift and found the defendant there. The testimony in rebuttal is that she did not work at North Dade Hospital, not that she was not at her mother’s house. That would go directly to the alibi. She was not working at North Dade. It impeaches the witness’ credibility. Your motion is denied.”

We affirm. Suarez’ testimony was evidence to impeach the credibility of Alberta Stanley and did not impeach the alibi per se. The trial judge was correct in permitting the introduction of this evidence, notwithstanding the fact that Suarez had not been listed as a rebuttal witness. People v. Gillman, 66 Mich.App. 419, 239 N.W.2d 396 (1976); State v. Howard, 56 Ohio St.2d 328, 383 N.E.2d 912 (1978).

Therefore, the convictions, adjudications of guilt, and sentences here under review be and the same are hereby affirmed.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my judgment, there is no basis on the facts of this case for distinguishing between evidence which destroys the believability of testimony concerning an alibi as recounted by the defendant’s only alibi witness; and evidence which contradicts the alibi itself. I would therefore follow United States v. Myers, 550 F.2d 1036, 1041-1042 (5th Cir. 1977), which makes just this point, and reverse the judgment below.


text:
    Robert Michael MALTZMAN et al., Appellants, v. Richard PICKETT, et ux., Appellees.
    No. 78-1486.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Adams & Ward and Amy Shield Levine, Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellants.
    Greene & Cooper and Sharon L. Wolfe, Sams, Gerstein & Ward, Miami, for appel-lees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from an order for a new trial entered upon the plaintiffs’ motion. We have reviewed the order appealed, the record, the grounds assigned (in light of the arguments presented), the holdings of the Supreme Court in Castlewood International Corporation v. La Fleur, 322 So.2d 520 (Fla.1975), and we find no clear abuse of discretion has been shown.

Affirmed.


author: SCHWARTZ, Judge.

text:
    James DONNELL, Appellant, v. INDUSTRIAL FIRE AND CASUALTY CO., an Illinois Corporation, a/t/d/b in the State of Florida, Appellee.
    No. 78-2380.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.

      Horton, Perse & Ginsberg, Arnold R. Ginsberg and Leo B. West, Miami, for appellant.
    Jeanne Heyward, Goodhart & Rosner, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

James Donnell, who was the plaintiff below, appeals from a summary judgment entered in favor of the defendant-appellee, Industrial Fire and Casualty Co., on the ground that the action was barred under the doctrine of res judicata. We reverse.

In the case now before us, Donnell directly sued Industrial Fire, as the liability carrier for one Vonnie Horne, to recover a $30,-000 default judgment the plaintiff had obtained against Horne for injuries sustained in an automobile accident. The insurer’s defense of res judicata was based on the fact that Industrial Fire had originally been an additional party defendant in the case against Horne. In that case, however, Industrial Fire moved to dismiss the complaint as against it and the attorney supplied by the carrier to represent him had moved to withdraw as counsel, on the ground that Horne had failed to cooperate with the company in his defense. On these motions the trial court entered the following order:

THIS CAUSE having come on to be heard before me upon Defendant INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY’S Motion to Withdraw as Counsel for Defendant VONNIE DAVID HORNE on .the grounds that said Defendant has not cooperated in the defense of this cause under the terms and provisions of his insurance policy, and Defendant INDUSTRIAL FIRE AND CASUALTY’S Motion to Dismiss, and after hearing argument of counsel, and the Court being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY’S Motion to Withdraw as Counsel for Defendant VONNIE DAVID HORNE be, and the same is hereby GRANTED, and it is further
ORDERED AND ADJUDGED that INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY’S Motion to Dismiss be, and the same is hereby GRANTED, [e. s.]

Contrary to the conclusion reached below, the proceedings in the initial action, as a matter of law, did not have the disposi-tive effect which is necessary to support a claim of res judicata upon either the plaintiff’s right to recover or the company’s defense of the insured’s breach of the cooperation clause. It is clear, first of all, that permitting insurance counsel to withdraw from Horne’s, representation cannot be so regarded, As was said in Peerless Ins. Co. v. Sheehan, 194 So.2d 285, 287 (Fla. 2d DCA 1967):

We are of the opinion that the order allowing counsel to withdraw was that and only that, and that it made no determination of any fact other than simply to allow counsel to withdraw. Certainly the order could not constitute res judicata as to Allred’s alleged breach of contract for failure to cooperate.

Even more plainly, the portion of the order which granted Industrial’s motion to dismiss Donnell’s case as against it does not serve to bar the later action. No order may be res judicata as to a subsequent case unless it is a final judgment which disposes of the controversy in the first one. Thoman v. Ashley, 170 So.2d 332 (Fla. 2d DCA 1964), cert. denied, 177 So.2d 205 (Fla.1965); Peaslee v. Michalski, 167 So.2d 242 (Fla. 2d DCA 1964). And it is settled by a veritable host of Florida authorities that an order, like this one, which merely grants a motion— and does not go further and actually dismiss the complaint, the cause, or a party, or enter judgment for the movant — is nothing more than an interlocutory one which cannot provide the foundation for a claim of res judicata. Edwards v. Kings Point Housing Corp., 351 So.2d 1073 (Fla. 4th DCA 1977); see, e. g., Kessler v. Gumenick, 358 So.2d 1167 (Fla. 3d DCA 1978); Shupack v. Allstate Ins. Co., 356 So.2d 1298 (Fla. 3d DCA 1978); Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978); First National Bank of Searcy, Arkansas v. Collins, 360 So.2d 804 (Fla. 2d DCA 1978); Horton v. Unigard Ins. Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert. dismissed, 373 So.2d 459 (Fla.1979); Shotkin v. Deehl, 148 So.2d 538 (Fla. 3d DCA 1963); Mitchell v. Italian-American Club, 122 So.2d 228 (Fla. 3d DCA 1960).

Since there was thus no basis for the entry of the summary judgment below, it is reversed and the cause remanded for appropriate consideration of the issue of whether there was a material, prejudicial and un-waived breach of the cooperation clause in the policy in question.

Reversed and remanded.

      . See Ramos v. Northwestern Mutual Ins. Co., 336 So.2d 71 (Fla.1976), and cases cited.

      . On the same day, the court entered a separate order which purported to “sever” Industrial Fire from the case and which “allowed” the law firm furnished by the carrier to withdraw. It is conceded that this order adds nothing to the effect of the one quoted in the body of the opinion.

      .Subsequent to this order the plaintiff proceeded to secure the default judgment against Horne alone.

      . As to the effect of a determination involving only the insured and the company upon the injured party’s rights in a subsequent proceeding, cf. also Allstate Ins. Co. v. Warren, 125 So.2d 886 (Fla. 3d DCA 1961), cert. denied, 131 So.2d 201 (Fla.1961).

      . This was the case in each of the decisions cited in the appellee’s brief. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Capers v. Lee, 91 So.2d 337 (Fla.1956); Maule Industries, Inc. v. MacDonald Engineering Co., 296 So.2d 512 (Fla. 3d DCA 1974); Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973); State ex rel. Terminal Transport Co. v. Earnest, 262 So.2d 469 (Fla. 3d DCA 1972); Lomelo v. American Oil Co., 256 So.2d 9 (Fla. 4th DCA 1971); Hammac v. Windham, 119 So.2d 822 (Fla. 1st DCA 1960).

      . See Ramos v. Northwestern Mutual Ins. Co., supra; Leatherby Ins. Co. v. Jones, 332 So.2d 139 (Fla. 3d DCA 1976); Peerless Ins. Co. v. Scheehan, supra; Bordettsky v. Hertz Corp., 171 So.2d 174 (Fla. 2d DCA 1965); American Universal Ins. Co. v. Stotsberry, 116 So.2d 482 (Fla. 3d DCA 1959).


text:
    George ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-130.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.

      Yogler & Postman and Alan L. Postman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Pox, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

George Robinson, the defendant, appeals an order denying his motion to vacate judgment and sentence following an evidentiary hearing.

Robinson was charged with five counts of robbery, five counts of aggravated assault and unlawful possession of a firearm while engaged in a criminal offense. An assistant public defender was appointed to represent him. On the day of his trial the State entered a nolle prosequi as to all five counts of aggravated assault and a jury trial was held on the remaining charges. At the conclusion of the trial, the jury found Robinson guilty of two counts of robbery and not guilty on the other charges. Judgment and sentence were then entered. Robinson perfected a plenary appeal and his conviction was affirmed. Thereafter, he filed the subject motion to vacate judgment and sentence (pursuant to Fla.R.Crim.P. 3.850) on the ground that he had been denied effective assistance of counsel. In essence Robinson argues that he was not informed about any aspect of the trial strategy and defense counsel never discussed with him whether or not he should testify in his own defense. After an evidentiary hearing the trial judge recited his extensive findings and then entered an order denying the motion to vacate. Robinson appeals the denial order. We affirm.

To prevail on a motion to vacate judgment and sentence on the ground of ineffective assistance of counsel, a defendant must demonstrate that his trial was a mockery or a farce. Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964); Quesada v. State, 321 So.2d 442 (Fla. 3d DCA 1975). Further, mishandling of a trial with regard to matters falling within the judgment or strategy of counsel does not constitute ineffective assistance of counsel. Solloa v. State, 227 So.2d 217 (Fla. 3d DCA 1969). After a perusal of the record we cannot conclude that Robinson’s trial was a mockery or a farce. He was acquitted of four of the six charges for which he was tried. Robinson attempted to mastermind his own defense and in fact his theory of the case in addition to all other pertinent issues was submitted to the jury. The evidence was overwhelming with regard to the charges upon which he was found guilty. We find the representation of Robinson to have been adequate and the order denying the motion to vacate is affirmed.

Affirmed.

      . See Robinson v. State, 351 So.2d 1100 (Fla. 3d DCA 1977).

      . That he was ripped off in that he gave $100 to one of the victims for drugs but did not receive any. He came back the next day and threatened this victim at gunpoint to return the money or to provide the drugs.


text:
    UNITED TEACHERS OF DADE and UTD Towers, Inc., Appellants, v. SAVE BRICKELL AVENUE, INC., etc., et al., Appellees.
    No. 79-402.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    duFresne & duFresne and Elizabeth J. duFresne, Miami, for appellants.
    Hersh & Bernstein and Brian R. Hersh, Miami, for appellees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

We entirely approve the final judgment under review and therefore adopt it as our own:

“THIS CAUSE came on before the Court, after notice, for oral argument on the Plaintiff/Petitioner, SAVE BRICKELL AVENUE, INC.’s complaint for relief including, but not limited to, a Writ of Certio-rari and an injunction.

UPON THE RECORD, the Court finds as follows:

A. The cause came on for final oral argument in accordance with the complaint for injunctive relief including, but not limited to, a Writ of Certiorari as well as the accompanying Appendix, transcript, brief, as well as briefs in opposition to the Petition for Writ of Certiorari and Appendices thereto and reply brief with a supplemental appendix.

B. At the oral argument on February 6, 1979, in open Court, all parties stipulated as follows:

(i) The trial on all issues involving the injunctive remedy pled by the Plaintiff was deferred until notice and hearing after the Court’s ruling on the Petition for a Writ of Certiorari.

(ii) All exhibits and appendices, as well as the transcript were to be accepted by the Court in ruling in the Petition for Writ of Certiorari and there were no objections to the Court considering all matters encompassed within the items, transcript and the appendices in the Court file.

(iii) The applicable City ordinance is that ordinance numbered 6871, Article XXXI — 1, a/k/a 8057 appearing in total at Appendix pages A-5 through A-9 and commonly known as the Planned Area Development Ordinance (PAD Ordinance).

(iv) In qualifying to submit the applicable, Section 4(2) of the Planned Area Development Ordinance mandates that the application for a planned area development shall have a minimum area in the tract of land of not less than three acres. An effort is made to provide an exception so that areas of less than three acres may be submitted where the area is distinguished from the surrounding area ‘by natural or man-made barriers such as rivers, canals, or other water areas, streets, etc.’.

(v) The area that is the subject matter of the City of Miami Resolution No. 77-603 is less than three acres.

(vi) The applicable area is not distinguished by any ‘man-made barriers’ and the only possible natural barrier would be the existing vegetation.

C. The Plaintiff/Petitioner alleges that the record is devoid of any competent, substantial evidence as the applicable area (which is less than three acres) being unique from any of the other surrounding lots in the R5-a zoning area that applies along the Brickell Avenue area in the City of Miami. Accordingly, that resolution No. 77-603 which allows the construction of a second building on the property at 1809 Brickell Avenue, Miami, Florida, with 366 units (being in excess of the 288 units allowed under Zoning District R-5A zoning) was passed by departure from the essential requirements of the ordinance applicable.

D. The above argument is in addition to the other arguments presented, which the Court has carefully considered.

E. The Planned Area Development Ordinance No. 8057 is intended to encourage the assembly of land into larger parcels in order to achieve a better urban environment. In the instant case, the first building on the parcel (which is less than three acres) was built in approximately 1965 and the application that is the subject matter of this litigation is for an additional building to be constructed approximately thirteen years later on the same parcel of land.

F.Section 4(2) provides, among other things, as follows:

‘ . .To qualify for a Planned Area Development application, a tract of land shall possess not less than three (3) acres.’

Notwithstanding this mandatory (‘shall’) requirement for qualification to make an application, this section continues with a contradictory alternative by providing as follows:

‘Applications for areas of less than three (3) acres may be submitted for approval, where the area is distinguished from the surrounding area by natural or man-made barriers, such as rivers, canals, other water areas, streets, etc.’

Only then does the next sentence of Section 4(2) come into consideration, and reads:

‘The approval of an application for an area less than three (3) acres shall be based on the area’s uniqueness and suitability for a Planned Area Development by virtue of its historical character, topography, ecological, natural or other unusual features.’

IT IS THEREUPON ORDERED and ADJUDGED as follows:

1. The Court has jurisdiction of the subject matter and the parties hereto.

2. The stipulations and findings above are adopted herein and made a part of this order and judgment.

3. That the mandatory requirement to qualify for a Planned Area Development application as contained in Ordinance 8057 (shall possess not less than three acres) excludes alternatives for applications pertaining to areas of less than three (3) acres.

4. That were it lawful to consider applications pertaining to less than three (3) acres, there is no competent substantial evidence in this record to support a finding that the parcel at 1809 Brickell Avenue, Miami, Florida, is distinguished from the surrounding area by natural or man-made barriers as required by Section 4(2) of the Planned Area Development Ordinance, vegetation being the sole existing barrier claimed by Respondents. This criteria or claimed ‘barrier’ is insufficient under the doctrine of ‘ejusdem generis’ (i. e. of the same kind).

5. That Resolution No. 77-603 is a departure from the essential requirements of the Planned Area Development Ordinance (law) and that the application was for a parcel less than three acres and not distinguished by natural or man-made barriers. Therefore, the City of Miami acted in excess of its jurisdiction and should not have accepted the application or approved the application. The Resolution must be and is hereby declared to be null and void and of no force and effect.

6. Having found that Resolution No. 77-603 was passed and adopted without authority and in departure from the essential requirements of the Ordinance, the Petition for a Writ of Certiorari be and it is hereby granted and Resolution No. 77-603 be and it is hereby quashed.”

Affirmed.


text:
    The STATE of Florida, Appellant, v. William McCORMICK, Appellee.
    No. 79-504.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Carter v. State, 374 So.2d 1063 (Fla.3d DCA 1979); Bembry v. Gable, 372 So.2d 177 (Fla.3d DCA 1979).


text:
    David R. DUBOIS, Appellant, v. Herman FRIED, Appellee.
    No. 79-673.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.

      Robert M. Brake, Coral Gables, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, H. Lawrence Asher, North Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Defendant mortgagor, David Dubois, appeals an order denying his motion to vacate judgment of mortgage foreclosure.

Plaintiff, Herman Fried, commenced a mortgage foreclosure action against David Dubois and his estranged wife, Nina. Service was made on Nina at their marital residence. Nina hired her own attorney and through him answered the complaint. David in proper person filed a separate answer. The cause was set for a non-jury trial. Notice of the trial date was sent to Nina’s attorney and the marital residence where only Nina was residing in that David and Nina separated and David was enjoined by court order from coming to the residence. As a result, David did not receive a notice of the trial and did not attend. A final judgment was entered against David and in favor of Nina. Shortly thereafter he received a copy of the judgment at his place of employment. David retained counsel and immediately filed a motion to vacate the judgment pursuant to Fla.R.Civ.P. 1.540(b) on the ground that he did not receive notice of the time and place of final hearing because he was banned by court injunction from his home to where the notice was sent and no notice was forwarded to him. Dubois further alleged in the motion that he had a valid defense: that Crown Mortgage Company which acted as agent for Fried, the mortgagee, had him (Dubois) execute a mortgage and note payable to Fried. Although Crown Mortgage delivered the mortgage and note to Fried, the company (with the exception of a $500 advance which was returned) never gave any of the proceeds to Dubois. Following a hearing the trial court denied the motion to set aside the judgment. Dubois perfected this appeal from the denial.

The record is undisputed that Dubois did not receive a notice of the final hearing and he has raised a meritorious defense. We, therefore, conclude that the trial court abused its discretion in denying the motion to vacate. See Harrison v. Hamby, 45 So.2d 662 (Fla.1950); Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972); Shafey v. Tease, 332 So.2d 137 (Fla. 3d DCA 1976); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979).

Accordingly, the order denying the motion to vacate is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.


text:
    Paul John BENNETT, Appellant, v. Diane Louise BENNETT, Appellee.
    No. 79-678.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Anne Peskoe, Miami, for appellant.
    Harold Peter Barkas, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Bennett appeals from an order, adopting a general master’s report, which held him in contempt for failure to make child support payments. Since the court and the master made neither of the alternative findings required by Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla.1976) to support an order of contempt, the order is reversed. Hammond v. Sandstrom, 376 So.2d 466 (Fla.3d DCA 1979), and cases cited. In any further proceedings, the appellant should be permitted to present any defense he may have to the application to hold him in contempt. See, e. g., Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977); Phillips v. Adams, 339 So.2d 665 (Fla.4th DCA 1976).

Reversed.


text:
    Anthony L. TAYLOR, Appellant, v. Maxine D. TAYLOR, Appellee.
    No. 79-784.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Ser, DeCardenas, Levine, Busch & Allen, Miami, for appellant.
    Michael Lechtman, North Miami Beach, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

On this appeal from a final judgment of dissolution, the husband primarily complains that the provision for rehabilitative alimony in the amount of $100 per week for two years was unjustified and excessive. As he contends, the record clearly shows that the trial judge based this award upon the fact that, during the marriage, Taylor had physically abused, or, as the lower court aptly put it, “brutalized” his wife. It is established that, under some circumstances, such misconduct may indeed properly be considered in the determination of the financial aspects of a “no-fault” dissolution proceeding. It would have been entirely appropriate, for example, to provide for support during any period shown to be required for Mrs. Taylor to recover from or to secure treatment for any injuries inflicted by her husband. See Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). Evidence of such conduct may likewise be taken into account in determining which spouse should bear the brunt of the fact that the dissolution renders it economically impossible for the parties to live separately in the life-style they maintained when living together. Williamson v. Williamson, 367 So.2d 1016, 1019 (Fla.1979); cf. also Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), and cases cited at 15.

Nevertheless, the purpose of alimony is only to require that the needs of one spouse be met by the other to the extent that he or she has the ability to pay. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). It was improper, therefore, instead to employ such an award, as it was below, as a means of punishing the spouse from whom alimony was sought, or, in effect, as a substitute for a money judgment in a personal injury case. Williamson v. Williamson, supra, at 367 So.2d 1019; Smith v. Smith, supra, at 15; Cornelius v. Cornelius, 375 So.2d 1089, 1092 (Fla. 1st DCA 1979); Klaber v. Klaber, 133 So.2d 98 (Fla. 2d DCA 1961). Since the alimony award was thus based upon the trial court’s application of an erroneous rule of law, see Cambest v. Cambest, 367 So.2d 686 (Fla. 3d DCA 1979), that aspect (paragraph 4) of the judgment below must be vacated so that the issue may be reconsidered in the light of the stated principles and authorities.

We find no merit in any of the other points raised by the appellant. The provision for the husband to pay any medical and dental expenses caused by his condúct; the disposition of the parties’ furniture and the security deposit on their apartment; as well as the requirement that Taylor pay his wife’s reasonable attorney’s fees, were all well within the trial court’s discretion. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Creel v. Creel, 378 So.2d 1251 (Fla. 3d DCA 1979); Winner v. Winner, 370 So.2d 845, 847 (Fla. 3d DCA 1979).

Affirmed in part, reversed in part and remanded.

      . The wife made no such showing below.

      . The record does contain some evidence that this had occurred in the present case.

      . That this is just what took place is demonstrated most forcefully by the following colloquy between the husband’s counsel and the court at the conclusion of the trial:
      “MR. LUCAS: My only response is, Judge, I do not believe alimony is supposed to be punitive and that is the whole way it is handled. It would be punitive.
      THE COURT: He should have thought of that before he beat her up.”

      . Contrast the situation referred to in Smith v. Smith, supra, at 15, in which the rights of the spouse claiming alimony may be adversely affected by his or her misconduct. E. g., Martin v. Martin, 366 So.2d 475 (Fla. 3d DCA 1979).

      . It is perhaps unfortunate that no such action lies under the present state of the Florida law. Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967), cert. denied, 389 U.S. 970 (1968); cf. Raisen v. Raisen, 379 So.2d 352 (Fla.1979); Mims v. Mims, 305 So.2d 787, 789 (Fla. 4th DCA 1974).

      . The court may, in its discretion, take further testimony upon remand.


text:
    Amparo NEBO and Oscar Nebo, her husband, Appellants, v. Miguel DUBROCQ, d/b/a Hotel America, Interamerican Hotel Operators, Inc., and Parliament Insurance Company, Appellees.
    No. 79-970.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellants.
    Jesse W. Miller, Underwood, Gillis, Karcher, Reinert & Valle and Anthony Rei-nert, Miami, for appellees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Webber v. Jordon, 366 So.2d 51 (Fla.2d DCA 1978).


text:
    JDM COUNTRY CLUB, Employer, and Southeast Title and Insurance Company, Carrier, Appellants, v. Harold G. HANNETT, Employee, Appellee.
    No. QQ-151.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1980.
    Stephen Marc Slepin, Tallahassee, and Alan Meltzer, Lake Park, for appellants.
    Frank G. Cibula, Jr., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


text:
    Steven W. GRIFFIN, Appellant, v. THOMPSON CONSTRUCTION COMPANY and Fireman’s Fund Insurance Companies, Appellees.
    No. QQ-317.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1980.
    George J. Adler of Meyers, Mooney & Adler, Orlando, for appellant.
    Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265, Case No. QQ-76, Opinion filed December 27, 1979 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


author: BLANCHE, Justice. TATE, J., DENNIS, Justice,

text:
    STATE of Louisiana v. Charles Edward BAGLEY.
    No. 63538.
    Supreme Court of Louisiana.
    June 25, 1979.

      Donald R. Miller, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eugene W. Bry-son, Jr., Asst. Dist. Atty., Patrick G. Quin-lan, Walter L. Smith, Jr., Asst. Attys. Gen., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Charles Edward Bagley, was indicted for forcible rape, a violation of LSA-R.S. 14:42.1. After trial by jury, the defendant was found guilty as charged and was sentenced to ten years at hard labor. Defendant urges three assignments of error as the basis of his appeal. Assignments one and two will be treated together as one assignment.

Testimony indicated that the defendant went to the home of the victim, a person with whom he was acquainted, and by means of a ruse gained entry into the house. The victim testified that Bagley then dragged her to one of the bedrooms and forcibly raped her.

The defendant admitted having sexual intercourse with the victim on the night in question but claimed that the victim voluntarily engaged in the act. Bagley testified that the victim and her husband were his regular suppliers of marijuana and, as a result, he had became acquainted with the victim. According to Bagley, on the night in question he went to the victim’s home to purchase some marijuana. Instead, he was invited inside where he and the victim smoked some marijuana and afterwards engaged in sexual intercourse. To bolster his consent defense, Bagley called several witnesses to the stand to testify to his good reputation in the community.

ASSIGNMENT NOS. 1 AND 2

By these assignments, the defendant contends the court erred in allowing the prosecution to question his character witnesses as to their knowledge of a complaint of rape filed against the defendant some years previous to the offense for which the defendant was being tried.

The defense called four witnesses to testify concerning the defendant’s reputation in the community. Counsel for the defendant asked each witness what sort of reputation the defendant had and asked three of the witnesses if they would feel comfortable if their wives were alone with the defendant. All testified that the defendant had a good reputation and that they would feel comfortable if their wives were alone with the defendant.

On cross-examination, the State asked, for the purpose of testing the witnesses’ knowledge of the defendant’s reputation and standard of evaluation, the following question:

“Did you know that a complaint was lodged with Caddo Parish Sheriff’s Department September 25, 1973 by [Mrs. X] alleging that the defendant here, Charles Bagley, attempted to rape her in her own home on that day and choked her?”

Over the defendant’s objections, the witnesses were permitted to answer the question. Only one answered that he had heard of the incident. The defendant claims that the inquiry was highly prejudicial and requires that this Court reverse his conviction. We disagree.

Evidence of a defendant’s good character is always admissible to show that it is unlikely he committed the crime with which he is charged. LSA-R.S. 15:480. However, the State is not permitted to show that the defendant is a bad person for the purpose of convincing the jury it is more likely than not that he is guilty. Thus, the State is allowed to introduce evidence of the defendant’s bad character only for the purpose of rebutting evidence of good character presented on the defendant’s behalf. LSA-R.S. 15:481. LSA-R.S. 45:479 provides that a man’s character, good or bad, is that reputation which he enjoys in the community, and hence no witness may testify as to his personal opinion of the defendant.

When a defendant chooses to place his character at issue by introducing evidence of his good character, the State is permitted to rebut such evidence either by calling witnesses to testify to the bad character of the defendant, or by impeaching the defense witnesses’ ability to testify to the defendant’s character. This Court has adopted the position that the cross-examination of a character witness may extend to his knowledge of particular misconduct, pri- or arrests, or other acts relevant to the particular moral qualities as are pertinent to the crime with which the defendant is charged. R.S. 15:480; State v. Frentz, 354 So.2d 1007 (La.1978); see also State v. Harvey, 329 So.2d 731 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Ivy, 307 So.2d 587 (La.1975); State v. Banks, 307 So.2d 594 (La.1975). The purpose of such inquiries is to expose the witnesses’ possible lack of knowledge regarding the character of the defendant, or the witnesses’ standard of evaluation.

The defendant urges us to reconsider our prior holdings. As we said in State v. Harvey, supra, 329 So.2d at 733, a case in which we were also asked to reconsider the jurisprudence on this question:

“ . . . Upon a review of the jurisprudence, we still find the following rationale from State v. Banks, supra, to be sound:
‘ . . . [W]e conclude that neither law nor justice permits a defendant to foist a spurious reputation upon a jury because the State is so limited in its cross-examination of the character witnesses that it may not inquire about knowledge of prior arrests. . . .’”

Since there was no evidence of bad faith on the part of the State, and the record reflects the question had sufficient foundation in fact, we find defendant’s assignment Nos. 1 and 2 to be without merit.

ASSIGNMENT NO. 3

By this assignment, defendant argues that the court erred in denying his motion for new trial. Defendant sought a new trial on the grounds of newly discovered evidence and on the grounds raised and disposed of in this appeal in assignment Nos. 1 and 2 above.

Article 851 of the Code of Criminal Procedure provides, inter alia, that a new trial shall be granted when:

“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty . .

Defendant, by affidavit attached to his motion, offered the testimony of two additional witnesses who swore that they had been with the defendant on several occasions when he had bought marijuana from someone at the residence of the victim and her husband. Defendant claims this evidence would further corroborate his defense of consent.

Defendant’s claim must fail for two reasons. First, the motion fails to allege the witnesses could not have been produced at trial. This is required. LSA-C.Cr.P. art. 851; State v. Charles, 350 So.2d 595 (La.1977). Moreover, the record discloses that the defendant, while on the stand, alluded to several persons by name who could testify that he had bought marijuana from the victim and her husband. The defendant said he did not call them because they did not want to testify that they had purchased marijuana. Hence, the defendant elected not to present the same evidence, which he now claims is newly discovered, in order to avoid putting his friends on the spot.

Secondly, the test for whether a motion for new trial on the basis of newly discovered evidence should be granted is whether the additional evidence is so material that it ought to produce a different result. State v. Huckaby, 368 So.2d 1059 (La.1979); State v. Williams, 362 So.2d 530 (La.1978). While this additional evidence would serve to impeach the victim’s credibility, as she testified that she had rarely seen the defendant and had never sold him marijuana, such impeaching testimony had already been given at trial by the defendant’s uncle. We are unable to conclude that the trial judge erred in finding the evidence ought not to produce a different result.

For these reasons, we find this assignment without merit.

DECREE

The conviction and sentence of the defendant are affirmed.

AFFIRMED.

TATE, J.,

I concur under the present jurisprudence, but Mr. Justice Dennis’ dissent expresses what shall be (and probably will be) the correct interpretation and application of character-evidence cross-examination.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Although the majority is correct in finding that the trial judge’s ruling concerning the state’s cross-examination of character witnesses is supported by previous decisions from this Court, the potential for abuse of such evidence indicates that some regulation of character witness cross-examination is needed.

During the trial of this case, the district court permitted the prosecuting attorney, over defendant’s objection, to ask four of the defendant’s character witnesses variations of the following question:

“Did you know that a complaint was lodged with Caddo Parish Sheriff’s Department September 25, 1973 by [Mrs. X] alleging that the defendant here, Charles Bagley, attempted to rape her in her own home on that day and choked her?”

In interpreting our statutory rules concerning character evidence, see La.R.S. 15:479 — 481, this Court has held that “it is not reversible error for the prosecution to question a defense witness about his knowledge of prior arrests of the defendant.” State v. Harvey, 329 So.2d 731 (La.1976); State v. Banks, 307 So.2d 594 (La.1975).

This type of rule has been criticized for a number of reasons both within and without our state. It trenches close to the widely condemned practice of proving other crimes extrinsically in order to show bad reputation as a logical result, presenting the danger that the jury, finding the prior crime, will shortcut the reputation process and use it more directly to convict in the case on trial. McCormick on Evidence, § 191, p. 457 (Cleary ed. 1972). See, Michelson v. United States, 335 U.S. 469, 477-87, 69 S.Ct. 213, 219-224, 93 L.Ed. 168, 174-179 (1948); 3A Wigmore, Evidence, § 988, pp. 920-21 (Chadbourn rev. 1970). In order to alleviate some of the danger, the witness should not be asked “if he knows” that the accused has committed such other crimes, but only whether he “has heard” that defendant has committed particular acts inconsistent with the reputation vouched for on direct. McCormick, supra, at pp. 456-57. See also, G. Pugh and J. McClelland, The Work of the Louisiana Appellate Courts for the 1972-1973 Term — Evidence, 34 La.L.Rev. 443, 447 (1974). Even so, a rule permitting the cross-examiner to ask the character witness whether he “has heard” of other particular crimes of accused involving the same trait is pregnant with possibilities of destructive prejudice. McCormick, supra, at p. 457. Although the courts agree that propounding such a question in bad faith may be ground for reversal, establishing bad faith may be a hopeless task for an accused in the absence of judicial intervention. McCormick, supra, at p. 458; 3A Wigmore, supra, § 988.

Wigmore and McCormick recommend that the trial judge, before permitting the prosecuting attorney to cross-examine the character witness on rumors of misconduct of the accused, should question the prosecu- • tor in the absence of the jury, as to whether he has credible grounds for asking the question. McCormick, supra, § 191; 3A Wigmore, supra, § 988. Several jurisdictions have approved, recommended, or required this or a similar practice. Michelson v. United States, supra; State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971); Miller v. State, 418 P.2d 220 (Okl.Cr.1966); People v. Yoshio Futamata, 140 Colo. 233, 343 P.2d 1058 (1959); People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958); State v. Steensen, 35 N.J.Super. 103, 113 A.2d 203 (1955).

The Superior Court of New Jersey has formulated perhaps the most thoughtful guidelines to assist trial judges in determining whether the prosecutor has reasonable grounds for cross-examining the character witness about convictions, arrests or other misconduct of the accused. In determining whether to allow the cross-examination, the trial court should conduct a preliminary inquiry out of the presence of the jury and he should satisfy himself:

“(1) that there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction, or other pertinent misconduct of the defendant;
“(2) that a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
“(3) that neither the event or conduct nor the rumor concerning it occurred at a time too remote from the present offense;
“(4) that the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
“(5) that the examination will be conducted in the proper form, that is: ‘Have you heard,’ etc., not ‘Do you know,’ etc. [citations omitted]
“And if the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose either at the conclusion thereof or in the charge.” State v. Steensen, 35 N.J.Super. 103, 113 A.2d 203, 206 (1955); accord, State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1975); Miller v. State, 418 P.2d 220 (Okl.Cr.1966); cf. People v. Robinson, 70 Mich.App. 606, 247 N.W.2d 308 (1976); State v. Briscoe, 78 Wash.2d 338, 474 P.2d 267 (1970).

Although the prosecuting attorney in the instant case doubtlessly acted in good faith, it is evident that substantial risk of unfair prejudice to the defendant resulted from the lack of any procedure for establishing reasonable grounds for the cross-examiner’s questions out of the jury’s presence. In the presence of the jury, the witnesses were asked, “Did you know” or “Are you familiar with the fact” that a complaint of attempted rape and choking had been filed against the defendant by Mrs. X on September 23, 1973? There was no showing of likelihood that knowledge of the complaint had circulated about the community so as to have had relevant effect upon the defendant’s reputation prior to the commission of the offense on trial. The jury was never informed of the exact purpose of the interrogation either at the conclusion thereof or in the jury charge. Under these circumstances, to allow the prosecutor to propound questions during the rape trial asserting that defendant previously had attempted a rape involving a specific victim, date and place virtually invited the jury to find that defendant had committed the prior crime and to conclude that he was more than likely guilty in the case on trial because of his predisposition to commit rape.

In reviewing the questions propounded by the state in the instant case, I am convinced that the asserted dangers of our present practice are real and that some regulation of character witness examination is necessary. The legitimate function of the prosecution in subjecting the character witness’s testimony to the crucible of cross-examination to enable the jury to assess his familiarity with defendant’s reputation and the quality of his report thereof can be per-

formed without the suggestion or assertion of facts in such a way as to arouse undue prejudice within the jury. In order to promote this legitimate function of the prosecution and to insure that a defendant is protected from possible abusive cross-examination, I believe that the safeguards which-have been advocated by the scholars, Wigmore and McCormick, approved by the United States Supreme Court in Michelson v. United States and articulated by the New Jersey Superior Court should be adopted.

Such a position is to some extent inconsistent with previous opinions of this Court. See, e. g., State v. Harvey, 329 So.2d 731 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Ivy, 307 So.2d 587 (La.1975); State v. Banks, 307 So.2d 594 (La.1975); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Powell, 213 La. 811, 35 So.2d 741 (1948); State v. Jacobs, 195 La. 281, 196 So. 347 (1940). However, it should be pointed out that in State v. Banks, supra, in which we carefully considered the reputation rebuttable issue, this Court recognized that the prevailing practice was not without the danger of abuse and warned against bad faith inquiry about prior arrests. Although I find no actual bad faith on the prosecutor’s part in the instant case, the substantial likelihood of undue prejudice calls for redress, and the need for the safeguards foreshadowed in Banks has now become too pressing to ignore.

Accordingly for the reasons assigned, I respectfully dissent.

      . The question was phrased in various other forms, but all contained essentially the same substance. All incorporated in one form or another a “did you know” inquiry as opposed to a “have you heard” query.

      . After the first witness was allowed to answer, over the defendant’s objection, defense counsel took the lead and asked the question of subsequent witnesses on direct. We believe this was done in an attempt to lessen the impact of the inquiry when made by the State. We do not view the defensive action taken by counsel as a waiver of his objection to the original ruling, however,

      . Other forms of the question used were as follows:
      “Q. Did you know a complaint had been lodged upon him by the [X’s], who are his neighbors, in connection with attempted aggravated rape of Mrs. [X]? * * *
      “Q. Now, are you familiar with the fact that they made a complaint with Caddo Parish Sheriffs Department in connection with an attempted rape of Mrs. [X] by the defendant here, Charles Bagley; are you familiar with that? * * *
      “Q. Are you familiar with the fact that during this alleged rape that Mr. Bagley was supposed to have choked this lady, Mrs. [X]? Are you familiar with that? * * *
      “Q. You were not familiar with the complaint lodged by them against Mr. Bagley that he attempted to rape Mrs. [X] in 1973,1 believe it was? You are not familiar with that? * *
      “Q. You are not familiar with the fact that the Sheriffs Department came out and made an investigation?”