author: SCHWARTZ, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. Eleanor Marcia WALKER, Appellee.
    No. 81-64.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.

      Joseph A. McGowan, Miami, for appellant.
    James J. Traitz, Coral Gables, for appel-lee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Travelers Indemnity appeals from an adverse judgment for damages and attorney’s fees in an action on a collision claim. We reverse the judgment because the trial court lacked jurisdiction to enter it.

During the course of the proceedings below, the parties purportedly reached a settlement. A dispute arose, however, concerning its terms, and Travelers thereupon filed and served a “motion to enforce settlement” in accordance with what it contended had been agreed to. After hearing, the trial court made the following ruling in an “Order Enforcing Settlement” which was filed on March 5 and recorded on March 7, 1980:

THIS CAUSE came on to be heard upon Defendant’s Motion to Enforce Settlement and the Court being fully advised in the premises, it is,
ORDERED that said Motion be and the same is hereby granted and it is further ORDERED that ELEANOR MARCIA WALKER shall deliver to the TRAVELERS INDEMNITY COMPANY a properly executed title free of liens, and a properly executed Release and Stipulation for Dismissal in exchange for a draft in the amount of TWO THOUSAND NINE HUNDRED EIGHTY NINE DOLLARS AND TWENTY NINE CENTS. ($2,989.29).

Eleven days after recording, on March 18, 1980, the plaintiff served a motion to vacate this order, which was filed on March 19, 1980. A successor trial judge granted the motion and subsequently entered the judgment now under review.

Under Fla.R.Civ.P. 1.530(b), a motion for rehearing in a non-jury action must be served not later than 10 days after the entry of judgment, which is deemed to be the date the judgment is recorded. Casto v. Casto (Fla., Case no. 59,255, opinion filed, July 16, 1981). The “motion to vacate” was not served within this time. It is therefore clear that the trial court lost jurisdiction over the cause if the quoted order was in fact a final judgment, thus subject to review in the trial court only by a timely motion for rehearing. Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); In re Estate of Beeman, 391 So.2d 276, 279 (Fla. 4th DCA 1980); Nahoom v. Nahoom, 341 So.2d 257 (Fla. 3d DCA 1977). We hold that it was.

As the familiar rule was succinctly stated in Slatcoff v. Dezen, 72 So.2d 800 (Fla.1954), “the test of a final judgment is whether the judicial labor is at an end.” 72 So.2d at 801. 3 Fla.Jur.2d Appellate Review § 51, n. 89 (1978). This is plainly true of the “Order Enforcing Settlement.” There was nothing whatever left for the court to do in the pending action, other than to enforce what the order required of the parties. See, Hensley v. Palmer, 59 So.2d 851 (Fla.1952); 3 Fla.Jur.2d, supra, n. 90. The plaintiff’s contention that a subsequent formal order of dismissal was necessary to terminate the action is untenable. By the terms of Fla.R.Civ.P. 1.420(a)(l)(ii), an action may be dismissed, specifically “without order of court” [e. s.], simply by filing a stipulation for dismissal, such as that provided by the judgment itself.

Reversed.

      . But see Groover v. Walker, 88 So.2d 312 (Fla.1956); Bailey v. Bailey, 204 So.2d 531 (Fla. 3d DCA 1967).

      . March 17, 1980, the tenth day after recording, fell on a Monday. Thus, there was no extension under Fla.R.Civ.P. 1.090(a).

      . In contrast, the trial court retains jurisdiction to alter interlocutory orders at any time prior to final judgment. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 307 So.2d 494, 495 (Fla. 2d DCA 1975).

      . We note that Travelers did not call the jurisdictional defect to the attention of the trial court.

      . The effect of this disposition is to recognize the continuing efficacy of the order of March 5, 1980.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barney Evan BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-1384, 81-1512.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Barney Evan Brown, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

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

Affirmed.


author: GLICKSTEIN, Judge.

text:
    JOHN CRESCENT, INC. and Belmont Holding Corp., Petitioners, v. Collins E. PETERSON and Margaret E. Peterson, his wife, and Theodore Schwartz, Respondents. JOHN CRESCENT, INC. and Belmont Holding Corp., Appellants, v. Theodore SCHWARTZ, Collins E. Peterson and Margaret E. Peterson, his wife, Appellees.
    Nos. 81-318, 81-323.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Aug. 28, 1981.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, and Grimditch, Bentz, Witte & Wunker, P. A., Pompano Beach, for petitioners/appellants.
    Donald M. Allison of Koski, Mateer & Gillespie, P. A., Boca Raton, for respondents/appellees — Collins E. and Margaret E. Peterson.
   GLICKSTEIN, Judge.

This is a petition for mandamus and/or for an order requiring compliance by the trial court with our previously issued mandate in John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA), cert. denied, 389 So.2d 1113 (Fla.1980). We consider it as a petition for enforcement of this court’s mandate as that procedure has been previously recognized by us in Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980).

In John Crescent, Inc., supra, we were faced with an appeal by the purchaser at a foreclosure sale and by his assignee who successfully sought to reverse the trial court’s order of September 28, 1977. The trial court order had vacated the judicial sale of Mr. and Mrs. Peterson’s home and had set aside the certificate of title to the petitioner here. We reversed the trial court, held that it abused its discretion and concluded our opinion by saying at 386:

The decision of the trial court vacating the judicial sale and setting aside the issuance of the certificate of title is reversed and this cause is remanded with instructions to enter an order consistent with this opinion.

At that point, the trial court’s duty was best expressed by this court in Stuart, supra at 1163:

When the mandate was received by the trial court, the court should have carried and placed into effect the order and judgment of this Court. Absent permission to do so, the trial court was without authority to alter or evade the mandate of this Court.

The trial court could not go beyond the confines of the mandate. Schetter v. Schetter, 330 So.2d 150 (Fla. 4th DCA 1976). The judicial sale held on April 25, 1977, should have been revived and the certificate of title should have been reinstated nunc pro tunc May 6, 1977, its date of issuance to the petitioner here. Any action necessary to effect the foregoing should have been taken by the trial court.

Instead, the trial court gave new life to its order of September 28, 1977, which was the subject matter of the appeal in John Crescent, Inc., supra, by adjudging that said order properly extended the homeowner’s right of redemption for seven days following September 28, 1977. It further said in its order of January 19, 1981, herein being reviewed:

4.The defendants in this cause, COLLINS E. PETERSON and MARGARET PETERSON, his wife, effected a complete redemption of the Final Judgment herein on October 4, 1977 by paying the amount of $4,712.28 into the registry of this Court.
5. The Clerk of the court has paid from suspense the sum of $5,000.00 to the third party purchaser, JOHN CRESCENT, INC., as the refund of the purchaser’s bid at the foreclosure sale which was vacated by the aforesaid Order of September 28, 1977.
6. The Clerk has paid the additional sum of $4,712.28 to mortgagee/Plaintiff, THEODORE SCHWARTZ, in full satisfaction of the Amended Final Judgment against Mr. and Mrs. Peterson, dated September 28, 1977.

Based on the foregoing findings the trial court adjudged that the exercise by the Petersons of their equity of redemption on October 4, 1977, constituted “a good and effective redemption and complete satisfaction of their adjudicated indebtedness” and denied petitioners’ motion for order pursuant to mandate.

Sub judiee the issue is whether the Peter-sons had a right of redemption in light of our reversal of the trial court’s order which vacated the judicial sale. Prior to the amendment to Section 45.031(1), Florida Statutes (1971), the statute did not mention a right of redemption. However, the courts had recognized “an inherent right of redemption which could be exercised at any time prior to entry of the order confirming the sale unless otherwise directed by the trial court.” Allstate Mortgage Corporation of Florida v. Strasser, 277 So.2d 843, 844 (Fla. 3d DCA), aff’d, 286 So.2d 201 (Fla.1973). The 1971 amendment provided:

In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale.

The term “before the sale” has been interpreted to be anytime until the issuance of a certificate of title. Walters v. Gallman, 286 So.2d 275 (Fla. 4th DCA 1973); Allstate Mortgage Corporation of Florida, supra.

We are aware of one instance after adoption of the amendment in which the period of redemption was extended beyond the ten day period that separates the judicial sale and issuance of certificate of title. In Done Investments, N.V. v. Forman, 369 So.2d 650, 651 (Fla. 3d DCA 1979), the court said:

Our review of the record shows that the trial court partially adopted, as it was permitted to do, the procedures for judicial sales set forth in Section 45.031. Here the final judgment, contrary to the provisions of Section 45.031, fixed a specific time for redemption. Further, at the time the trial court entered its order extending by three and one-half days the mortgagor’s time for redemption beyond the original ten day period, no certificate of title had been issued by the clerk of court. Under these circumstances, in our opinion, the trial court could properly within its discretion extend the mortgagor’s period for redemption. (Emphasis supplied.)

However, the facts of the Done Investments case are substantially different from those sub judice. Here, by virtue of this court’s decision in John Cresent, Inc., supra, the certificate of title was to be reestablished as if it had been issued on May 6, 1977. Accordingly, the Petersons’ right of redemption expired on May 6,1977, and the trial court was without authority to extend the time period beyond that date.

We therefore grant the petition herein, quash the trial court’s order of January 19, 1981, and direct the trial court to enter orders consistent with our mandate.

PETITION GRANTED and ORDER QUASHED.

LETTS, C. J., and BERANEK, J., concur.

      . An extension of the period of redemption also can be accomplished by stipulation between the parties. See Hudgins v. Florida Federal Savings and Loan Ass’n., 399 So.2d 990 (Fla. 5th 1981).


author: ORFINGER, Judge.

text:
    The CHRISTIAN BROADCASTING NETWORK, INC., Appellant, v. Edward F. STARR, Jr., as Receiver of Sun World Broadcasters, Inc., Appellee.
    No. 80-980.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.

      Jeffry R. Jontz of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, Orlando, for appellant.
    Eli H. Subin of Subin, Shams, Rosenbluth & Moran, Orlando, for appellee.
   ORFINGER, Judge.

The Christian Broadcasting Network (CBN) appeals an order determining its claim against the appellee, Sun World Broadcasters, Inc. (SUN), whose assets are in receivership as a result of corporate dissolution proceedings.

CBN’s claim against SUN arose from a judgment obtained by it in the Federal District Court for the Middle District of Florida, based on the assignment to CBN by RCA Corporation (RCA) of a lease covering television broadcasting equipment under which SUN, as lessee, had defaulted. The judgment awarded CBN and RCA the sum of $1,154,104.72 as present and future damages under the defaulted lease. Simultaneously with the assignment of the lease, RCA also sold the repossessed equipment to CBN.

In determining the amount of CBN’s claim to be allowed in this receivership proceeding, the trial court deducted the sum of $75,856.64, representing interest included in the judgment up to the time the receiver was appointed and further reduced the judgment by $426,724.47, which was the amount received by CBN because of a subsequent sale of some of the broadcasting equipment. The trial court thus allowed CBN a total of $651,523.11, ordered that this claim would bear no interest and that CBN would be paid last after all other creditors were paid. It is from this order that CBN appeals. We reverse.

Appellant’s first point questions the right of the receivership court to reduce the amount of the judgment rendered by the Federal Court and on which CBN’s claim is based. Appellant contends that its claim must be recognized in its full amount and that the receivership court is not at liberty to disregard certain elements of the judgment or to reduce the judgment. Appellant relies on Bidwell v. Carstens, 316 So.2d 264 (Fla. 1975), for the proposition that in Florida, the formula for damages for breach of a lease agreement is all past damages prior to breach, plus the present value of future lease payments, diminished by any beneficial use which the lessor has had of the property and any amounts which the lessor has received by virtue of the sale of the repossessed property. Appellant says that since the federal court had reduced the damages by the amount of the sale price of the equipment from RCA to CBN, the receivership court had no authority to reduce it further when CBN sold some of the same equipment to a subsequent purchaser.

When the nature and amount of the claim have been conclusively determined by a court of proper jurisdiction, the claim may not be relitigated by the receivership court. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947). But, says, appellee, the receivership court here did have the right to reduce CBN’s claim on the theory of “equitable subordination”, citing Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939). In Pepper, however, the Supreme Court was discussing fraudulent claims, claims designed to defraud creditors. This is further explained in Kapp v. Naturelle, Inc., 611 F.2d 703 (8th Cir. 1979), where the court summarized the cases thusly:

As a general rule, in allowing and disallowing claims of creditors, bankruptcy courts are required to give res judicata effect to prior judgments of non-bankruptcy courts. . . . Thus matters previously adjudicated between the same parties by a court of competent jurisdiction may not be relitigated in the bankruptcy court. It is, however, well established that bankruptcy courts are courts of equity with broad powers to disallow or subordinate claims when equitable considerations warrant. . . . Hence, a claim which has been reduced to judgment may nevertheless be challenged on the ground that the rendering court lacked jurisdiction, or because the judgment was procured by fraud or collusion, (emphasis added).

Id. at 708.

There is no issue of fraud or collusion in this case. Appellee nevertheless supports the theory of equitable subordination by saying that it would be inequitable to ignore the $426,724 which CBN received when it sold certain of the assets, and that under the doctrine of Bidwell, the receivership court was correct in deducting this amount from the judgment. This argument overlooks the fact that the Federal Court had already reduced the judgment by $900,000, which was the sale price of the assets from RCA, as repossessor, to CBN as purchaser. We find no authority for the receivership court to reduce the claim further just because the purchaser later sold some of the purchased assets. The reason for the deduction when the lessor sells the repossessed equipment is to prevent a double recovery or a windfall to the lessor. Bidwell at 266. This reasoning does not apply to the purchaser of the equipment. Neither should the lessee receive a double recovery (i. e., a double reduction) because there has been a subsequent sale by the purchaser. Thus, an accounting had already been made of the amount received from the sale of the equipment after repossession, and CBN should not have been required to account further for any subsequent sale by it.

CBN also contends that the trial court had no authority to deduct from the judgment the amount included in it as interest up to the time the receiver was appointed and that the trial court should also have allowed interest on the claim.

With regard to the interest included in the judgment, it is generally held that when a verdict liquidates a claim and fixes it as of a certain date, interest should follow from that date. Behm v. Division of Administration Dept. of Transportation, 383 So.2d 216 (Fla. 1980); English and American Insurance Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969); Huntley v. Baya, 136 So.2d 248 (Fla. 3d DCA 1962). Thus there was no reason not to include interest in the federal court judgment. With respect to its allowance in the receivership after the receiver was appointed, the general rule is that unless sufficient funds are available, no interest is payable on claims filed against a bankrupt as of the date of bankruptcy. In re Central Railroad Co. of New Jersey, 479 F.2d 424 (3 Cir. 1973). However, if sufficient funds exist to pay interest on all claims in bankruptcy, interest should be permitted. Bankers Trust Co. v. Florida East Coast Ry. Co., 31 F.Supp. 961 (S.D. Fla. 1940).

Appellee admits the receivership will remain with a net of $608,476 after all claims are paid, or, if the amount of CBN’s claim is reversed, a net of $105,895. Appel-lee’s argument here seems to be that there is no “fund” from which to dispense interest, because the net remaining assets should go to the stockholders. Section 607.277(2), Florida Statutes (1979) provides, inter alia, that “the assets of the corporation or the proceeds resulting from the sale, conveyance, or other disposition thereof shall be applied to the expenses of such liquidation and to the payment of the liabilities and obligations of the corporation, and any remaining assets or proceeds shall be distributed among its shareholders according to their respective rights and interests.” Ap-pellee’s argument overlooks the fact that receiverships are supposed to be conducted primarily for the benefit of the creditors and secondarily for the benefit of the stockholders. The Christian Broadcasting Network, Inc. v. Turner Communications Corporation, supra. The record here reveals that there is a fund out of which to pay interest on the claim, and interest should not have been disallowed. It appears from the record that other creditors have agreed to forego interest, but it is clear that the appellant did not. On remand, the trial court should reevaluate the claims and allow interest to appellant and to any creditor who is entitled thereto, as the assets of the receivership will allow.

Finally, we find no authority for that portion of the court’s order which provided that this appellant would be the last creditor to be paid. We find no basis upon which the appellant should stand in any different position than any other creditor. CBN wears two hats in this litigation. One is as the assignee of RCA’s lease, thus as a judgment creditor based on the lease. The second is as a purchaser from RCA of the repossessed equipment. As it attempts to enforce the judgment, CBN stands in the shoes of RCA, its assignor. This position is in no way affected by the fact that it was also the purchaser of the repossessed assets, so a subsequent sale of some of the purchased assets does not affect its position as a judgment creditor and should not be held against it.

Summarizing, that portion of the trial court’s order deducting from CBN’s judgment the amount of $426,724.47 is reversed, and that amount is ordered restored to the judgment. That portion of the order deducting $75,856.64, representing interest up to the time the receiver was appointed is also reversed and is ordered restored to the judgment. On remand, the trial court shall determine the availability of assets from which to pay interest on claims, including appellant’s, and to allow such interest thereon as the availability of funds will permit. Finally, that portion of the trial court’s order placing the appellant in a different position than other creditors is reversed, and the trial court is directed to provide for payment of the appellant’s claim as for any other creditor.

REVERSED and REMANDED for further proceedings consistent herewith.

DAUKSCH, C. J., and COBB, J., concur.

      . Appellant’s claim has twice before been considered in appellate proceedings. For additional background, see The Christian Broadcasting Network, Inc., v. Sun World Broadcasters, Inc., 353 So.2d 560 (Fla. 4th DCA 1977); The Christian Broadcasting Network, Inc. v. Turner Communications Corporation, 368 So.2d 1345 (Fla. 4th DCA 1979).

      . The Federal District Court did follow Bidwell v. Carstens, and determined damages to equal $2,386,887.72, broken down as follows:
      (1) $1,195,776 as present value as of March 17, 1977, of the lease payments in default, including 15% simple interest [$28,026].
      (2) $47,830.64 interest at 6% on (1) from March 17, 1977, to Nov. 17, 1977.
      (3) $1,098,145 present value as of Nov. 17, 1977, of future payments under the lease;
      (4) $15,136.08 RCA cost of removal and repossession of equipment;
      (5)$30,000 attorney’s fees.
      The following were deducted from gross damages by the District Court:
      (a) $900,000 sale price of repossessed equipment to CBN;
      (b) $77,539 security deposit paid by SUN;
      (c) $40,000 payments on another lease;
      (d) $215,244 value of RCA’s beneficial use of the repossessed equipment, including 15% simple interest.


text:
    Stanley SIMPSON, Laurana Simpson, his wife, and United Services Automobile Association, Appellants, v. PHILLIPS PETROLEUM COMPANY, Appellees.
    No. 80-1553.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for appellants.
    Greene & Cooper and Sharon L. Wolfe, Pyszka & Kessler, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Cardounel v. Shell Oil Company, 397 So.2d 328 (Fla.3d DCA 1981); De La Torre v. Chevron, U. S. A., Inc., 374 So.2d 1046 (Fla.3d DCA 1979); Perry v. Cities Service Oil Company, 239 So.2d 869 (Fla.3d DCA 1979); Cawthon v. Phillips Petroleum Company, 124 So.2d 517 (Fla.2d DCA 1960).


text:
    Judith A. PELLICANO and Robert Kranis, d/b/a Official Copies, Appellants, v. PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, d/b/a Jackson Memorial Hospital, Appellee.
    No. 80-2375.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Brumer, Cohen, Logan & Kandell and Kenneth R. Duboff, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and Craig H. Coller, Asst. County Atty., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

We affirm the dismissal of the complaint with prejudice because, on two separate bases, it affirmatively appeared, Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla.3d DCA 1971), cert. denied, 252 So.2d 797 (Fla.1971), that the plaintiffs could not state a viable cause of action for breach of contract against the defendant Public Health Trust. Maryland Casualty Co. v. Krasnek, 174 So.2d 541 (Fla.1965); Code of Metropolitan Dade County § 25A— 4(a); 10 E. McQuillin, Municipal Corporations § 29.15 (3rd ed. 1981).

Affirmed.


text:
    ELECTRA FORD, Appellant, v. The STATE of Florida, Appellee.
    No. 80-383.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.

      Bennett H. Brummer, Public Defender, and Harold T. Fields, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant was found guilty by a jury of receiving unlawful compensation for official behavior, a violation of Section 838.-016(1), Florida Statutes (1979). She was adjudicated guilty and sentenced to two years in the State Penitentiary to be followed by three years probation, a special condition of which was that she make restitution to the Department of Housing and Urban Development for the amount of $2,700.00.

Appellant seeks reversal of her conviction and sentence on the grounds that the trial court erred in denying her motion for judgment of acquittal because the evidence adduced did not prove a prima facie case of guilt and was insufficient as a matter of law to justify a verdict of guilt. We cannot agree.

The record reveals ample support in law and fact for the verdict and judgment of conviction, and no reversible error has been demonstrated as to the conviction. However, as to the sentence, we must reverse and remand for the entry of a sentence that is in accord with the rule enunciated in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

For the reasons stated the judgment of conviction is affirmed and the sentence is reversed and the cause is remanded to the trial court for re-sentencing pursuant to the requirements of the Villery case.

Affirmed in part, reversed in part and remanded.


author: NESBITT, Judge.

text:
    Jay MARSCHALL and Marilyn Marschall, his wife, Appellants, v. WATER-BOGGAN INTERNATIONAL, INC., a Delaware corporation; Water-Boggan Construction Company, a Florida corporation; Gregory Anders; Neville B. Rich; Walter B. Rooke; and Charles Matheson, Appellees.
    No. 80-2107.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.

      Bartel & Shuford and Robert A. Swee-tapple, Miami, for appellants.
    No appearance for appellees.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The appellants, plaintiffs below, appeal an order dismissing their complaint, for want of prosecution, entered pursuant to Florida Rule of Civil Procedure 1.420(e).

The plaintiffs’ original action was commenced in 1977. On October 17, 1978, the court granted an order pursuant to a stipulation permitting the withdrawal of counsel for the defendants and postponing hearings on all pending motions until such time as new counsel of record for the defendants file an appearance. The defendants did not cause a new attorney of record to appear on their behalf. On March 25, 1980, on its own initiative, the trial court entered an order requiring reservice of all resident and nonresident defendants. Alias summonses were issued and substituted service was ostensibly perfected upon all defendants. On August 27, 1980, a notice of hearing on motion for order of dismissal was initiated by the court requiring the plaintiffs to show good cause in writing before September 16, 1980 why the cause should not be dismissed for want of prosecution. The plaintiffs timely filed a response reciting the foregoing facts. Nonetheless, the court dismissed the plaintiffs’ complaint for want of prosecution by order entered October 3, 1980.

Florida Rule of Civil Procedure 1.420(e) provides that:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion ....

By the terms of the rule, an “order of court” constitutes record activity. The computation of time for dismissal of actions is determined by calculating the time between the date of filing the last affirmative act and the date of the filing of the motion to dismiss or abate for failure to proceed according to the mandate of the rule. Florida East Coast Railway Company v. Southern Sanitation Service, 392 So.2d 355 (Fla. 4th DCA 1981); Ace Delivery Service, Inc. v. Pickett, 274 So.2d 15 (Fla.2d DCA 1973).

The order of March 25, 1980, requiring reservice of process, was record activity. The return of the alias summonses and substituted service likewise constituted record activity. Therefore, the October 3, 1980 order dismissing the action was improper because there was record activity during the one-year period preceding the motion for dismissal.

Reversed and remanded.


author: BASKIN, Judge.

text:
    Lawrence Edris QUARTERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1888.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Bennett H. Brummer, Public Defender, and Gerald D. Hubbart, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We reject the argument presented by defendant Quarterman in which he asks us to hold that when reporter Clarence Jones parked an old car on Interstate-95 in order to film the car during its anticipated theft he consented to the taking. In Lowe v. State, 44 Fla. 449, 32 So. 956, 957 (1902), the court disposed of a similar contention by stating:

[A] taking by the voluntary consent of the owner, or his authorized servant or agent, even though with a felonious intent, does not constitute larceny. But where the criminal design originates with the accused, and the owner does not, in person or by an agent or servant, suggest the design, nor actively urge the accused on to the commission of the crime, the mere fact that such owner, suspecting that the accused intends to steal his property, in person or through a servant or agent, exposes the property, or neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished, will not amount to a consent in law, even though the agent or servant of such owner by his instructions appears to cooperate in the execution of the crime. 1 Bish. New Cr. Law, § 262; Alexander v. State, 12 Tex. 540; Dodge v. Brittain, [19 Tenn.] Meigs, 84. See, also, note to Connor v. People (Colo.Sup.) [18 Colo. 373] 33 P. 159, 25 L.R.A. 341, 36 Am.St.Rep. 295.

We agree.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Russell FORSTEN a/k/a Russell Foster, Appellee.
    No. 80-2281.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The trial court discharged the appellee on the ground, among others, that the state’s 120 day delay in bringing him to trial subsequent to the expiration of an agreed continuance violated his constitutional right to a speedy trial. This issue “must be determined in the light of the circumstances of the particular case as a matter of judicial discretion.” State ex rel. Butler v. Cullen, 253 So.2d 861, 863 (Fla.1971), quoted and readopted in Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980). No abuse of that discretion has been demonstrated on this record. Negron v. State, 306 So.2d 104 (Fla.1974) (100 day delay after state continuance found constitutionally unreasonable).

Affirmed.

      . Because the defendant had previously himself both moved for and agreed to continuances, the provisions of Fla.R.Crim.P. 3.191 were not controlling. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).


text:
    In re the ESTATE OF Helen G. RUST, Deceased. George SHAMAS, former Personal Representative of the Estate of Helen G. Rust, Appellant, v. Edgar C. BUNDY, Personal Representative of the Estate of Helen G. Rust; Leychester Bonura and Richard Rust, Appellees.
    No. 80-1847.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Shalle Stephen Fine, Miami, for appellant.
    Edward C. Vining, Jr., Philip Freidin, Charles 0. Farrar, Jr., Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

We agree with the trial court’s ruling granting a motion for involuntary dismissal at the conclusion of the opponents’ case on the ground that they had failed to make a prima facie showing that the challenged will had been procured by undue influence. See, Heasley v. Evans, 104 So.2d 854, 857 (Fla.2d DCA 1958); see generally, In re Estate of Carpenter, 253 So.2d 697 (Fla.1971).

Affirmed.


author: FERGUSON, Judge. BARKDULL, Judge,

text:
    Ken A. TAYLOR, a minor, by and through his father, Leo A. Taylor, and Leo A. Taylor, individually, Appellants, v. Norman J. DASILVA and Fireman's Fund Insurance Company, Appellees.
    No. 81-970.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.

      Colson & Hicks and Mary Friedman, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiffs-appellants, Ken A. Taylor, a minor, and his father Leo A. Taylor, appeal from a court order granting defendants-ap-pellees’ motion for a change of venue and transferring the action from Dade County to Osceola County.

Appellants originally sued Fay Lee Tong, Norman J. Dasilva, State Farm Mutual Automobile Insurance Company, and Fireman’s Fund Insurance Company in Dade County Florida alleging serious and permanent injury to Ken Taylor caused when motor vehicles operated by Tong and Dasil-va each struck the vehicle in which Ken Taylor was riding. The accident occurred in Osceola County. Ken, who was severely burned, was taken to a hospital in Orlando County and within twenty-four hours transferred to Jackson Memorial Hospital in Dade County.

Under Section 47.122, Florida Statutes (1979), a defendant seeking a change of venue bears the burden of proving that substantial inconvenience or undue expense to the parties would result from trial in the forum chosen by the plaintiff and that a change is therefore required for the convenience of the parties or witnesses. Houchins v. Florida East Coast Railway, Co., 388 So.2d 1287 (Fla. 3d DCA 1980); Ashland Oil, Inc. v. Florida Department of Transportation, 352 So.2d 567 (Fla. 2d DCA 1977). When venue is proper in more than one county, the choice rests with the plaintiff, Houchins, supra at 1289, and should not be disturbed without a showing of substantial inconvenience or the likelihood of injustice. Ashland Oil, Inc., supra at 569.

In their motion for change of venue, ap-pellees state:

1. The subject action should be abated or transferred to the Circuit Court located in Osceola County, Florida for the reason that venue is improper in Dade County or the present forum is inconvenient.
2. The Defendant TONG is a resident of Osceola County; the accident happened in Osceola County, the Defendant, DA-SILVA, is a resident of New Jersey; and, witnesses are located in Osceola County.
3. Plaintiffs are not residents of the State of Florida and the only connection between the subject action and Dade County, Florida is Plaintiffs’ attorney.

Appellees filed no affidavit or memorandum in support of these statements. Appellants, on the other hand, filed affidavits and a memorandum challenging the factual basis of the motion for change of venue on the grounds that no defendant is a resident of Florida, there exists a strong connection with Dade County in that appellant, Ken Taylor, was treated in a Dade County hospital for injuries received in the accident, and plaintiffs-appellants’ primary witnesses are located in Dade County. In the affidavit, appellants list numerous medical witnesses, eyewitnesses, and other witnesses who are residents of Dade County. Appellees provide no indication of the name or number of witnesses who allegedly reside in Osceola. The record indicates only one such witness, the former defendant Tong. Osceola County is neither adjacent to Dade County nor is it the home of all the parties. Cf. Della-Donna v. Gore Newspaper Co., 390 So.2d 87 (Fla. 3d DCA 1980) (Broward and Dade Counties are adjacent, Broward County residence of all parties); Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979) (even between adjacent counties, transfer improper without required showing of inconvenience).

Although a grant or refusal of application for change of venue is generally within the sound discretion of the trial court, the discretion of the court is not unbridled and must be predicated upon a proper showing of convenience or interests of justice. Ashland Oil, Inc., supra at 569. On this record, however, it is clear that appellees have not met the required burden of showing that the forum selected by the plaintiffs will result in substantial inconvenience, undue expense or the likelihood of injustice.

Reversed and remanded for proceedings consistent with this opinion.

BARKDULL, Judge,

dissenting.

I respectfully dissent, and would affirm. See: Pearson v. Wallace, 400 So.2d 50 (Fla. 5th DCA 1981).

      . We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(A).

      . Section 47.011, Florida Statutes (1979), providing that an action may be brought in the county where the action accrued, does not apply here because both parties are non-residents and is properly not relied upon on appeal.

      .Defendant Tong had apparently settled and was no longer a defendant at this point.


author: DANIEL S. PEARSON, Judge.

text:
    CORTEZ DEVELOPMENT COMPANY, an Ohio Partnership, and Marvin Rosenberg, Trustee, Appellants, v. NEW YORK CAPITAL GROUP, INC., Appellee.
    Nos. 81-494, 81-558.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.

      Smathers & Thompson and James W. Crabtree, Miami, for appellants.
    Greenfield & Duval, North Miami, and Marvin D. Michaels, Coral Gables, for appel-lee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Cortez Development Company and Marvin Rosenberg, defendants below, have brought separate appeals from the trial court’s order denying their respective motions to quash the service of process and to dismiss the complaint for insufficiency of service of process. While we have consolidated the appeals upon appellee’s motion, the issues are distinct.

I.

Cortez Development Company is an Ohio limited partnership, a general partner of which is Towne Management, Inc. Service of process upon Cortez was effected by personally serving one Michael Sollinger in Clearwater, Florida, who, according to Cortez’s Declaration of Condominium recorded in 1979 in the public records of Hillsborough County, Florida, was a vice president of Towne Management, Inc. Facially, the service of process comported with the requirements of Sections 48.061(3) and 48.081, Florida Statutes (1979).

Cortez moved to quash the service of process and dismiss the complaint. It relied on the supporting affidavit of Sollinger, which in essence stated that he was not an officer of Towne Management, Inc., the general partner of Cortez, as of December 1, 1980, when the summons and complaint were served on him.

Even if, arguendo, we were to accept Cortez’s argument that service upon one who is not an officer of a general partner at the time service is effected is ineffective to serve the limited partnership, see Country Clubs of Sarasota Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977) (service on former partner ineffective), and Sunrise Beach, Inc. v. Phillips, 181 So.2d 169 (Fla. 2d DCA 1965) (service on former corporate officer ineffective), the trial court had before it these facts: (a) in October 1980, upon Cortez’s motion, the trial court quashed service of process on different grounds; (b) Sollinger’s affidavit did not indicate on what date prior to December 1, 1980, he ceased to be an officer, whether the cessation was bona fide, or the connection, if any, he continued to have with Towne Management, Inc. or Cortez; (e) the plaintiff had no actual notice, nor could it have been on notice through any available public record, that Sollinger was no longer an officer of the general partner, compare Sunrise Beach, Inc. v. Phillips, supra (holding that service upon former corporate officer who, as the plaintiffs were well aware, was no longer connected with the company when service was effected, was invalid); (d) Sollinger was served at a Clearwater, Florida, address shared by Cortez, Towne Management, Inc. and Towne Management of Florida, Inc., in which latter company Sol-linger was an officer as of the time of service; (e) Cortez in fact received notice of the suit from Sollinger promptly enough to allow it to file, within twenty days of service, the motion to dismiss which is the subject matter of this appeal, compare Country Clubs of Sarasota Ltd. v. Zaun Equipment, Inc., supra (holding that although the defendant was estopped to claim that service upon a former partner was ineffective, a default and final judgment entered against the defendant would be set aside where there was no evidence that the defendant knew of the suit until the final judgment was entered); see also Rever v. Lapidus, 151 So.2d 61 (Fla. 3d DCA 1963). From these facts the trial court could have found that the plaintiff justifiably relied on Cortez’s recorded Declaration of Condominium when serving Sollinger and that Cortez was estopped to attack as invalid the service of process on Sollinger, Country Clubs of Sarasota Ltd. v. Zaun Equipment, Inc., supra.

II.

Rosenberg fares no better. His sole complaint is that notwithstanding that the certified mail addressed to him was returned by the post office marked “REFUSED,” substituted service of process under Section 48.161, Florida Statutes (1979), was invalid in light of his sworn statement that he did not refuse this mail nor instruct anyone to refuse it on his behalf. We hold that the trial court, as the finder of fact, could have completely rejected Rosenberg’s exculpatory statement, Cherry v. Heffer-nan, 132 Fla. 386, 182 So, 427 (1938); Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970), or certainly found it unconvincing, Livingston v. Fein, 359 So.2d 25 (Fla. 3d DCA 1978), in light of other evidence before it showing that (a) the address of Rosenberg was correct according to other records and information received from persons at that address, compare Crews v. Rohlfing, 285 So.2d 433 (Fla. 3d DCA 1973); Green v. Nashner, 216 So.2d 492 (Fla. 3d DCA 1968) (no showing of connection between defendant and address to which letter sent); and (b) Rosenberg, in October 1980, had succeeded in quashing an earlier service accepted by another on his behalf at that address.

A refusal to accept delivery excuses the filing of return receipts and further compliance with Section 48.161, Cherry v. Heffernan, supra; Zarcone v. Lesser, 190 So.2d 805 (Fla. 3d DCA 1966). In the present case there was ample evidence from which the trial court could have found that Rosenberg refused delivery and was attempting to avoid service of process. Luckey v. Smathers & Thompson, 343 So.2d 53 (Fla. 3d DCA 1977); Steedman v. Polero, 181 So.2d 202 (Fla. 3d DCA 1966). This is not a case where the letter was returned marked “unclaimed” or “moved — left no address,” giving rise to the plausible inference that the defendant was not at the posted address. See Turcotte v. Graves, 374 So.2d 641 (Fla. 4th DCA 1979); Crews v. Rohlfing, supra; Green v. Nashner, supra; Zarcone v. Lesser, supra; Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960). Instead, the letter was marked “REFUSED,” which, combined with evidence pointing to Rosenberg being at the address to which the letter was sent and the prior abortive service upon him, supports the inference that the return of the letter is chargeable to him.

Affirmed.

      . Section 48.061(3) provides that “[p]rocess against a foreign limited partnership shall be served on any general partner found in the state . . . . ” Section 48.081 provides that process against any domestic or foreign corporation may be served, inter alia, on the vice president.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    BARNETT BANK OF BROWARD COUNTY, a Florida banking corporation, Appellant, v. Jay TABATCHNICK and Marilyn Tabatchnick, his wife, and Bruce Tabatchnick and Meryl Tabatchnick, his wife, and First National Bank of Hollywood, a banking corporation, Appellees.
    No. 80-1647.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.
    Chad P. Pugatch of Cooper, Shahady, Frazier & Pugatch, Fort Lauderdale, for appellant.
    Gary M. Farmer and Jack F. Weins of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellee First Nat. Bank of Hollywood.
   OWEN, WILLIAM C., Jr., Associate Judge.

The substantive appellate issue presented is whether the court erred in denying a judgment creditor’s motion for judgment in garnishment against the garnishee bank, appellee herein. We are unable to reach this question because of lack of jurisdiction.

Appellant, a judgment creditor, caused writ of garnishment to be issued and served upon appellee, the garnishee, whose answer to the writ disclosed that it held certain assets of the defendants but against which it claimed a setoff in excess of the value of the property held by it. Appellant filed no reply to the garnishee’s answer, but instead filed a motion for judgment in garnishment. After a hearing on that motion the court entered the order herein sought to be reviewed which simply stated that the garnishor’s motion for judgment in garnishment “. . . be, and the same is hereby denied.”

While this appeal was pending, appellee filed a motion to dismiss for lack of jurisdiction. We elected to defer ruling on the motion, requesting that counsel address that issue at the time of presenting oral argument on the merits. We have concluded that we do not have appellate jurisdiction and that the appeal should be dismissed.

Garnishment, while ancillary in nature, is nonetheless a separate and distinct proceeding which in its present statutory form, requires service of writ and permits service of an answer by the garnishee, a reply by the plaintiff, a motion to dissolve by the defendant, and affidavits on behalf of any third person claiming the garnished property. Each has certain definite procedural consequences, some provide for a trial or hearing in one form or another, and all contemplate ultimate entry of final judgment which terminates the writ, either by discharging the garnishee from further liability under the writ or by awarding judgment in favor of the judgment creditor against the garnishee.

The order under review here is neither a final appealable order under Florida Rule of Appellate Procedure 9.110, nor an appeala-ble non-final order under Rule 9.130(a)(3) or (4). Jefferson National Bank of Miami Beach v. Cloverleaf Hospital, Inc., 194 So.2d 287 (Fla. 3d DCA 1967). The court simply lacks jurisdiction. Atria v. Anton, 379 So.2d 462 (Fla. 4th DCA 1980).

Dismissed.

DOWNEY and BERANEK, JJ., concur.


author: DOWNEY, Judge.

text:
    Patricia Ann TOLIN, Appellant, v. Charles TOLIN, Appellee.
    No. 80-1802.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.
    Robert A. Huth, Jr., Fort Lauderdale, for appellant.
    Caryn Grainer, Fort Lauderdale, for ap-pellee.
   DOWNEY, Judge.

This is an appeal by the wife from a final judgment of dissolution of marriage. It is our conclusion that the judgment should be affirmed in part and reversed in part.

The marriage endured for some twenty-five years and resulted in the birth of three children, only one of whom is still a minor. The eldest child is disabled in that he suffers from a mental disorder; however, the record indicates he receives adequate financial assistance from the Federal Government and thus is not dependent on his parents, at least from a monetary standpoint.

The wife never completed high school and has no formal training in any line of endeavor. At the time of the final hearing she was employed in a factory assembly line earning approximately $120 per week. Since her position was the lowest level in terms of salary and seniority she was subject to frequent and long term layoffs. During the marriage the wife’s primary role was that of a homemaker, caring for her three children and husband.

The husband has been a police officer with the City of Fort Lauderdale for the past fifteen years. In order to supplement the family income he worked other odd jobs in his off duty hours as a policeman. However, he terminated the additional employment about the time the parties separated.

In 1962 the parties purchased a house on 18th Street in Fort Lauderdale, taking title as an estate by the entireties. In 1972 the husband purchased a second home on 24th Avenue, but took title in his name alone. The record indicates that all of the purchase price for this second home was paid out of money the husband earned during the marriage.

In her counterpetition the wife sought custody, child support, permanent alimony, attorney’s fees, and a conveyance of the 18th Street property and furnishings as lump sum alimony. She also contended she was entitled to a special equity in the 24th Avenue property and prayed that it be sold and the proceeds be divided equally between the parties.

Among other things, the final judgment awarded custody of the minor child to the wife, together with $40 per week child support, parochial school tuition, and medical expenses. The wife was awarded title to the furnishings in the 18th Street house, together with possession of the house during the child’s minority. The judgment also awarded $30 per week rehabilitative alimony for twelve months.

Appellant’s contention that she is entitled to a special equity in the 24th Avenue property because of her contribution to the family commonweal is without merit. Unquestionably the wife upheld her end of the bargain by taking care of the children, her husband, and the home, in addition to periodically working outside the home part of the time. Although the husband purchased the 24th Avenue property with money he earned during the marriage, the record title was held in his name alone. The law as it currently exists in Florida is that unless a special equity is pled and proven according to the standards enumerated in Ball v. Ball, 335 So.2d 5 (Fla.1976), record title to a piece of property governs its disposition upon dissolution of marriage. In order to be entitled to a special equity in property a party must prove an extraordinary contribution toward the acquisition of the property. Ball v. Ball, supra. There is no such proof in this record. A special equity does not arise by the mere performance of routine household and child rearing responsibilities. Thus, we affirm the trial court’s refusal to award appellant a special equity in the 24th Avenue property. Furthermore, we affirm the award of custody, child support, and the lump sum award of the furnishings in the 18th Street house.

However, we hold that the award of $30 per week of rehabilitative alimony was inadequate in view of the wife’s circumstances. We also cannot approve the award of possession of the 18th Street house rather than a lump sum award of that property. Considering the length of the marriage, the wife’s substantial contribution to the marriage, her age and education, we believe the trial court abused its discretion in not awarding her the 18th Street house as lump sum alimony, a larger amount of rehabilitative alimony for a longer term, and attorney’s fees.

Accordingly, we reverse the final judgment and remand it to the trial court with directions to reconsider the matter and to award the appellant attorney’s fees, a larger amount of rehabilitative alimony for a longer period of time and the 18th Street property as lump sum alimony. In all other respects the judgment appealed from is affirmed.

REVERSED IN PART; AFFIRMED IN PART, and remanded with directions.

MOORE and HERSEY, JJ., concur.


text:
    William Hansford JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-76.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
   PER CURIAM.

This appeal is untimely and therefore dismissed. Fla.R.App.P. 9.140(b)(2).

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Appeal in this case, had it been timely, would have been frivolous. Robinson v. State, 373 So.2d 898 (Fla.1979).


text:
    Lessie May COOPER, a/k/a, Lessie May Parker, Appellant, v. STATE of Florida, Appellee.
    No. 81-91.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The appeal from the judgment is dismissed, Robinson v. State, 373 So.2d 898 (Fla. 1979), and the sentence is affirmed.

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


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

text:
    GALL SILICA MINING CO. and Risk Management Services, Inc., Appellants, v. Edward SHEFFIELD, Appellee.
    No. YY-275.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1981.

      John A. Leklem of Miller & Cooper, P. A., Orlando, for appellants.
    Michael B. Murphy of Stanley, Wines & Smith, P. A., Auburndale, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Employer/carrier appeal from the deputy commissioner’s order awarding claimant Sheffield workers’ compensation benefits for his back injury. We find no error in any of the points raised on appeal, and specifically reject the employer/carrier’s argument that Sheffield waived his right to wage-loss disability benefits by his failure to file a timely request for some of them under section 440.185(10), Fla. Stat. (1979).

Section 440.185(10), added by the legislature in 1979, provides in pertinent part:

Any compensable wage loss shall be reported by the employee to the carrier or self-insured employer within 30 days after the termination of the month for which such loss is claimed. The [workers’ compensation] division shall provide by rule for the reporting of wage loss by the injured worker ... to the division and may prescribe forms for such reporting. . .. The division shall require by rule that the employer inform a worker who suffers a permanent impairment of his possible entitlement to wage-loss and other benefits and of the worker’s obligation to report a claimed wage loss.

Apparently aware that claimant had been released for work with some medical restrictions, the carrier soon afterward sent him the form letter required by the workers’ compensation division under Fla. Admin. Code Rule 38F-3.17(3), .19(1), notifying claimant that he might be eligible for wage-loss benefits. The letter advised claimant that he must file a request for wage-loss benefits for each month during which he suffered wage loss due to his injury, but it did not tell him when he must file such requests to comply with § 440.-185(10). We hasten to add that the letter complied with Rules 38F-3.17(3) and .19(1); the rule, like the carrier’s letter, makes no mention of the filing deadline.

Employer/carrier argue that since section 440.185(10) contains no provision excusing failure to report wage-losses in a timely fashion, its reporting requirements are mandatory, and Sheffield has lost his benefits due to failure to comply with them. We cannot agree with this construction of the statute. The legislature very explicitly put the burden of notifying the worker of his obligation to report a claimed wage loss on the division and the employer. Despite the division’s apparent failure by rule to require a comprehensively informative notice, the self-executing compensation scheme requires the employer to advise the worker of his obligation to report a claimed wage loss, l^e decline to forfeit a claimant’s right to valuable benefits on the ground that he failed to meet statutory deadlines the employer should have brought to his attention but did not.

In this and other respects, the deputy’s order is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.


text:
    WALT DISNEY WORLD COMPANY, Appellant, v. Louise MOLTER, Appellee.
    No. YY-129.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.

      Lee G. Schmudde, Orlando, for appellant.
    John Marshall Kest of Wooten, Honeywell, Kest & Martinez, Orlando, for appel-lee.
   PER CURIAM.

The employer/carrier appeals a workers’ compensation order awarding fees to the claimant’s attorney for obtaining an increase in compensation benefits from $87.60 to $130.00 per week. At the time the claimant sustained her compensable injury, the employer/carrier was unaware that she was also employed at a second job and failed to include income therefrom in its computation of benefits. All other benefits were promptly paid by the employer/carrier. Seven months subsequent to the injury, after consulting an attorney, the claimant notified the employer of her concurrent employment and claimed an increased compensation rate. Within 21 days of the receipt of this claim, the employer increased the claimant’s rate and forwarded a lump sum check to her as an adjustment to benefits previously paid. All subsequent disability benefits were timely paid at the corrected rate.

The Deputy Commissioner determined that the claimant’s attorney was entitled to a fee for bringing about an increase in rate, and that the employer had failed to make an “in-depth inquiry with regard to the average weekly wage and concurrent employment.”

The employer/carrier urges that the award of attorney’s fees was erroneous because the claim was investigated immediately upon receipt, and all benefits claimed were paid within 21 days. Florida Statutes, Section 440.34(1) (1978 Supp.). We agree. This case is distinguishable from situations where the employer stands behind “a wall of willful ignorance” and fails to investigate medical facts even after being notified that benefits may be due. E. g., Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla. 1970). The claimant has a duty to make her claim known. Here, there was nothing to put the carrier on notice that additional benefits might be due. Accordingly, the award of attorney’s fees based on additional benefits attributable to claimant’s concurrent employment is REVERSED.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Lee WORKMAN, a/k/a Rose Workman, Appellant, v. Peter B. WORKMAN, Appellee.
    No. WW-381.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.

      Carroll L. McCauley, Panama, for appellant.
    Michael L. Stone, of Marvin A. Urquhart, Jr., P. A., Panama City, for appellee.
   PER CURIAM.

This cause is before us on appeal from a final judgment of dissolution awarding appellant lump sum, rather than periodic, alimony. We affirm, noting that the Circuit Court has reserved jurisdiction to modify the judgment. Therefore, appellant will be able to apply for further permanent alimony when, for example, the lump sum installment payments terminate, her health worsens, or the husband’s financial circumstances improve. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); Hyatt v. Hyatt, 315 So.2d 11 (Fla.3d DCA 1975).

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Gail Baker WARE, Appellant, v. STATE of Florida, Appellee.
    No. WW-384.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

Ware was adjudged guilty of burglary and was sentenced to a term of imprisonment for three years. The sentence provided that eighteen (18) months were to be served in prison followed by three and one-half (8*6) years probation. Ware challenges the legality of this sentence.

Subsequent to the sentencing hearing herein, the Florida Supreme Court issued its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). In Villery, the court held that:

[IJncarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(3), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. . . . [T]his decision applies retroactively.

Id. at 1111 (emphasis supplied). Accordingly, the sentence is reversed, and this cause is remanded for resentencing pursuant to the guidelines set forth in Villery, supra.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    John Arthur HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. WW-400.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.

      Michael Minerva, Public Defender, David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Hogan appeals the denial of his motion to correct sentence, arguing that he was entitled to be resentenced pursuant to the Florida Youthful Offender Act, Section 958.011, et seq., Florida Statutes (1979). We agree and reverse.

The trial court ruled that Hogan’s conviction for armed robbery precluded his treatment as a youthful offender. At the time of his order, the trial judge did not have the benefit of our ruling in Lee v. State, 399 So.2d 1027 (Fla. 1st DCA 1981), in which we held that an armed robbery conviction does not preclude youthful offender treatment. Accordingly, the order is reversed, and the cause is remanded for further proceedings consistent with Lee v. State, supra.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: THOMPSON, Judge.

text:
    BURGER KING CORPORATION and Employers Insurance of Wausau, Appellants, v. Joseph STARK, Appellee.
    No. WW-409.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.

      Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.
    Jerold Feuer, Miami, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that: (1) the Deputy Commissioner (“the Deputy”) erroneously determined that the claimant sustained a permanent partial disability (“PPD”) based on loss of wage-earning capacity; and (2) the Deputy erred by finding that the claimant was temporarily totally disabled (“TTD”) from April 30 to September 7, 1979. We agree and reverse.

The claimant, an assistant manager for Burger King, sustained a compensable lower back injury in March 1979. He was examined by Dr. Steiner, an orthopedic surgeon, who released the claimant to return to light work on April 23, 1979. The claimant attempted to return to work but after working 2 days he was unable to continue. Shortly thereafter, he terminated his employment with Burger King. He stated that he then attempted to find work in Florida, but he did not recall where he looked. He did apply for a sales position with a real estate company, and he began employment there on June 1, 1979. However, while he worked for this company he received no salary and made no commissions, and on September 21, 1979 his employment was terminated because he was a “non-producer.”

On September 7, 1979, the claimant was examined by Dr. Lusskin, an orthopedic surgeon, who noted that the claimant sustained a 15% to 20% anatomical PPD. The Deputy found that the claimant reached maximum medical improvement (“MMI”) as of September 7, 1979. Later in September, the claimant moved to California and began delivering pet supplies. Beginning in March 1980, he began to unsuccessfully look for managerial or sedentary work in California.

Hearings began in March 1980, when the following was also received as evidence: The claimant is 26 years old and has a Florida real estate license, as well as a college degree in urban land use planning. His employment application with Burger King also shows that he has college degree in business administration, in addition to employment experience as a building contractor (1% years) and an assistant manager in a department store (6 months). He currently considers himself to be in generally good health, except for his back injury.

The Deputy found that the claimant’s average weekly wage at Burger King was $310.00, and that his current earnings in California are $165.00 per week. The Deputy also found that the claimant sustained a 55% PPD based on loss of wage-earning capacity, and that he was TTD from April 30 to September 7, 1979.

Loss of wage-earning capacity is generally based on findings “as to whether by virtue of the injury the claimant suffered any reduced capacity to earn in the same or other employment the wages which [he] was receiving at the time of the injury.” Ball v. Mann, 75 So.2d 758, 760 (Fla. 1954). See also Southern Bell Tel. & Tel. Co. v. Bell, 116 So.2d 617, 621 (Fla. 1959). In making this determination, § 440.25(3)(c), Fla.Stat. (Supp. 1978) lists numerous factors which should be considered, the first one being the extent of the claimant’s actual physical impairment.

The Deputy found, pursuant to Dr. Luss-kin’s report, a 15% to 20% anatomical impairment. While the appellants dispute the validity of Dr. Lusskin’s rating, we find that the Deputy could have properly relied upon that rating.

Another factor to be considered is the wages actually being earned by the claimant after his injury. The appellants contend that the Deputy placed undue emphasis on this factor, see Sterling Equip. Man. Corp. v. May, 144 So.2d 305, 308 (Fla. 1965), and ignored other important factors such as the claimant’s age, education, and work experience. See, e. g., Mohawk Construction Co. v. Doty, IRC Order 2-3817 (May 22, 1979); Montgomery Ward v. Hayes, 172 So.2d 581 (Fla. 1965).

The appellants’ point is well-taken, especially when viewed in light of another factor: whether the claimant has made a good faith effort to test his wage-earning capacity in the open labor market after reaching MMI. See Burger Chef v. Benedetto, 394 So.2d 206, 207 (Fla. 1st DCA 1981); Exxon Co. v. Alexis, 370 So.2d 1128, 1132 (Fla. 1978). In this case, the Deputy found that “the claimant has conducted a thorough job search and is excused from any further search. His limitations and work history adversely affect his ability to compete for a job even though he is well motivated.” This finding is not supported by competent substantial evidence. The claimant simply did not timely and “realistically test his wage-earning capacity in the job market. ...” Food Fair, Inc. v. Povalitis, 390 So.2d 410 (Fla. 1st DCA 1980). Nor was there any evidence justifying an excu-sal from the work search requirement. Cf. Benedetto, 394 So.2d at 207 (where such an excusal was justified because two treating physicians reported that the claimant was “not yet capable of returning to some form of employment.”)

The claimant failed to prove that he sustained a loss of wage-earning capacity in excess of his anatomical impairment. Additionally, the Deputy erroneously found that the claimant was TTD from April 30 to September 7, 1979.

TTD is the healing period during which the claimant is totally disabled and unable to work, due to his injury. When there is no medical evidence that a claimant is unable to work, he must make a conscientious effort to return to work before he can establish that he is unable to work. Walter Glades Condominium v. Morris, 393 So.2d 664, 665 (Fla. 1st DCA 1981).

In this instance, the claimant unsuccessfully attempted a two day return to work after Dr. Steiner’s release. Burger King paid the appropriate TTD benefits for this period of time, and subsequently the claimant terminated his employment.

This Court has stated that “when a claimant’s job is no longer available, and there is no medical evidence that he is unable to work, the claimant is . . . required to seek work in order to establish TTD.” Lehigh Corp. v. Byrd, 397 So.2d 1202, 1204 (Fla. 1st DCA 1981). Here, the claimant left his job with Burger King, but according to Dr. Steiner’s release, he was still capable of performing light work, and thus, under Lehigh, the claimant was required to conscientiously seek such work. In this respect, the claimant’s nonspecific recall of his Florida work search is insufficient to establish a bona fide work search. See Milex Southern Medical, Inc. v. Osuna, IRC Order 2-3763 (April 12, 1979), cert. den. 383 So.2d 1200 (Fla. 1980). Moreover, the claimant did not show that “his work search was unsuccessful due to his disability (rather than unavailability of work).” Lehigh, 397 So.2d at 1204. Thus, from April 30 to May 31, 1979, the claimant was not TTD.

As for the period from June 1 to September 7, 1979, the claimant worked for a real estate company. Although he earned no money, this circumstance was not due to the effects of his injury, but to the fact that he was a “non-producer.” Accordingly, he was not TTD during this time.

In conclusion, we note that the appellants also challenge the Deputy’s determination of the claimant’s average weekly wage, as well as the Deputy’s finding that the appellants are responsible for the payment of Dr. Lusskin’s bill. We affirm on these two points, while we reverse the Deputy’s Order insofar as it awards TTD benefits and PPD benefits based on loss of wage-earning capacity. This cause is remanded for proceedings consistent with opinion, including the award of PPD benefits based solely on the claimant’s anatomical impairment.

ROBERT P. SMITH Jr., C. J., and JOA-NOS, J., concur.


text:
    Roosevelt SMITH, Appellant, v. STATE of Florida, Appellee.
    No. WW-462.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.
    Michael E. Allen, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Roosevelt Smith appeals a condition of his probation requiring him to pay court costs, contending that the trial court erred in setting an amount of $300 over his objection without any determination of the actual costs incurred. We interpret Section 27.-56, Florida Statutes (1979), to require that costs imposed be shown to be the actual costs, rather than set at an arbitrary figure. Accordingly, this condition of Smith’s probation is set aside pending remand of the cause for a hearing to determine the actual amount of costs incurred.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    Thomas J. FREIHEIT, Appellant, v. COCONUT CREEK DEVELOPERS, et al., Appellees.
    No. YY-98.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.
    Richard A. Sadow, North Miami, for appellant.
    H. B. Yandle, Miami, for appellees.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order which we affirm except as to the deputy commissioner’s denial of the claim for penalties pursuant to § 440.20(7), Florida Statutes. Appellee concedes that claimant was entitled to such a “penalty award,” and the order appealed is accordingly reversed on this issue and remanded to the deputy commissioner for the assessment and imposition of the statutory penalty.

BOOTH and SHAW, JJ., concur.


text:
    Steven PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1031.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Alan Jay Braverman, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

In an opinion filed on June 24, 1981, we held that because of the amount of evidence supporting appellant’s conviction, any error committed by the trial court in failing to instruct the jury on penalties was harmless. Subsequently, the Florida Supreme Court has ruled that the harmless error rule cannot be applied in such a manner to the error involved herein. See Murray v. State, 403 So.2d 417 (Fla.1981) and Tascano v. State, 393 So.2d 540 (Fla.1981).

Accordingly, our opinion of June 24,1981, is hereby withdrawn, the judgment of conviction is hereby reversed and this cause is remanded for a new trial in accordance with the Supreme Court’s decision in Tasca-no, supra.

ANSTEAD, HERSEY, and GLICK-STEIN, JJ., concur.


text:
    STATE of Louisiana v. Betty M. BADON.
    No. 81-K-1341.
    Supreme Court of Louisiana.
    June 5, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., George Perez, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-relator.
    Kenneth E. Badon, Lake Charles, for defendant-respondent.
   PER CURIAM.

We granted the state’s mid-trial application for supervisory writs to review a single question raised below: whether a police officer may testify with regard to the results of a field sobriety test in the absence of proof that he first advised the defendant of his Miranda rights. Defendant was charged by separate bill of information with driving while intoxicated, La. R.S. 14:98, resisting an officer, La. R.S. 14:108, and improper lane usage, in violation of La. R.S. 32:78(B). The state consolidated the prosecutions and brought defendant to trial on May 21, 1981 before the court alone. Evidence at trial indicated that on November 10, 1980, Trooper Russell Haman with the state police spotted defendant driving the wrong way down the 1-10 bridge in Calcasieu Parish and pulled her over. According to the officer, defendant smelled strongly of alcohol, and staggered on her feet, when she stepped from her car. At this point, Trooper Haman administered a field sobriety test. The test gauges a suspect’s responses according to the performance of certain physical tasks: walking in a straight line; standing on one foot; touching a finger to the point of the nose; speaking distinctly in a coherent manner, etc.

With one Officer’s first mention of the field sobriety test, defense counsel objected that the state had not provided him with timely notice under La. C.Cr.P. Art. 768. The trial court ultimately ruled that Art. 768 notice was not required. Cf., State v. Himel, 260 La. 949, 257 So.2d 670 (1972). Nevertheless, the court maintained the objection on grounds that the officer had not advised defendant of her Miranda warnings before administering the test. It then recessed trial to give the state an opportunity to challenge that ruling in this Court. We now reverse.

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Supreme Court held that “.. . the prosecution may not use statements, whether exculpatory and inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” In Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), decided the same term, the court then emphasized that the Fifth Amendment privilege, and the coextensive Miranda safeguards “protect[ ] an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature ...” “The distinction which has emerged...” the court noted, “is that the privilege is a bar against compelling ‘communication’s’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Id., 384 U.S. at 764, 86 S.Ct. at 1832.

Courts that have considered the present question have held uniformly that a field sobriety test does not touch upon an individual’s Fifth Amendment privilege and that no Miranda warnings are therefore required. City of Wahpeton v. Skoog, 300 N.W.2d 243 (N.D.1980); People v. Ramirez, 609 P.2d 616 (Colo.1980); Palmer v. State, 604 P.2d 1106 (Alaska 1979); Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1979); Trail v. State, 526 S.W.2d 127 (Tenn.Cr.App.1975). In City of Wahpeton v. Skoog, supra, 300 N.W.2d at 245, the Supreme Court of North Dakota set forth the appropriate Fifth Amendment analysis under Schmerber and we now adopt its reasons as our own:

Field sobriety tests are based on the relationship between intoxication and the loss of coordination which intoxication causes. These tests do not force the subject to betray his subjective knowledge through his communicative facilities. They only compel the suspect to exhibit his physical characteristics of coordination as a source of real or physical evidence which may be testified to by the officer observing the tests. They require the suspect “to stand, to assume a stance, to walk, or to make a gesture” within the purview of Schmerber. We note, as the Schmerber court did, that “[sjome tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial.” In this instance, however, no such problem exists. Thus, we believe that field sobriety tests are physical and real evidence and do not activate the protections afforded by the Fifth Amendment.

Accordingly, when trial of the present case resumes, the state trooper may testify with regard to the physical tasks he asked the defendant to perform. The ruling of the trial court is therefore set aside and this case is remanded for all proceedings not inconsistent with the views expressed herein.

RULING VACATED AND SET ASIDE; CASE REMANDED.

MARCUS, J., concurs.

      This description of the field sobriety is the state’s in its writ application, and our opinion is accordingly limited to the kinds of physical tasks described. We expressly do not consider here the more conventional questioning of a defendant by a police officer which may, depending on the circumstances, amount to a custodial interrogation likely to elicit an incul-patory response: e.g., whether defendant had been drinking, how much, etc. See, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).


author: SWIFT, Justice ad hoc.

text:
    STATE of Louisiana v. Kelvin R. SMITH.
    No. 80-KA-2504.
    Supreme Court of Louisiana.
    June 25, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., William R. Weatherford, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Frank T. Saia, and M. Michele Fournet, Baton Rouge, for defendant-appellant.
   SWIFT, Justice ad hoc.

The grand jury of East Baton Rouge Parish returned a true bill of indictment against the defendant, Kelvin R. Smith, charging him with second degree murder of Arthur Camel in violation of La.R.S. 14:30.-1. At the conclusion of the trial the jury found the defendant guilty as charged by a vote of ten to two. Thereafter he was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence as required by the statute. The defendant filed six assignments of error, but only two were briefed and argued. Therefore the others are considered abandoned.

FACTS

On August 16, 1979, defendant Smith picked up his girlfriend, Linda Camel, and her three children and drove them in his car to her mother’s house. The two older children got out there. Shortly thereafter Linda’s brother, Arthur Camel, and his girlfriend, Carolyn Spencer, got in the back seat of the car, Linda and the baby being in the front seat with the defendant. After driving around for a while the defendant stopped the car, got out and pointing a pistol at Mr. Camel ordered him out of the vehicle. As Camel was doing so, defendant struck him in the face with a gun, knocked him to the ground and stomped or kicked him. The defendant then got back in the car and drove off with Linda Camel, leaving the victim unconscious in the street.

In the meantime a crowd had gathered. Carolyn Spencer called an ambulance from a nearby house. When she returned the victim’s body had been moved a short distance down the street. The victim was taken to the hospital and died a few days later without regaining consciousness. Upon learning of Camel’s death, the defendant went to the police station voluntarily and was arrested.

The defenses urged were self-defense (based solely on the defendant’s testimony that he believed Camel had a gun wrapped in a bandana), the lack of any specific intent to kill or do great bodily harm to the victim (mainly on the basis that defendant did not fire his loaded pistol) and that the victim’s death had not resulted from the defendant’s attack (as Carolyn Spencer testified she saw members of the crowd kicking or striking the victim with sticks after she called the ambulance).

The defendant testified that because of his relationship with Linda he had had prior trouble with the Camel family. He and the victim got into an argument while driving around just before this incident and he was afraid Camel was armed and was going to attack him. So he stopped the car and told the victim to get out. When Camel did, “he came out of the car with his bandana ... I felt like he had a gun or something wrapped up in it.” The defendant’s pistol was in his hand and he said he slapped Camel with it trying to avoid an attack. They started fighting with their fists and Camel was knocked down. Defendant maintained that he had struck the victim in the head with a gun only once and kicked him only one time.

On the other hand, both Linda Camel and Carolyn Spencer testified that defendant picked up Arthur and Carolyn to go look for some dope. None of the occupants of the car except Smith had a weapon of any kind. They drove around for a while and the defendant stopped the car. He told the victim to give him money. Arthur had none, but Linda Camel gave him $65.00 in food stamps. Defendant then produced his gun and told all of them to get out of the car. As Arthur did so, defendant struck him with the pistol several times on his head or neck. Camel made no attempt to defend himself, did not reach for a weapon and made no move toward Smith. After falling to the ground, Camel was kicked and stomped by defendant in the head and other parts of his body numerous times. None of the bystanders attempted to stop this. Finally, defendant told Linda to get in the car and run over Camel. When she refused, saying she could not drive, defendant got her and the baby back in the car and left. Although her recollection was not vivid, Ms. Spencer said on cross-examination she thought she saw some members of the crowd kicking or using sticks on the victim when she returned from calling the ambulance.

The only other eye witness who testified at the trial, Josie L. Johnson, was a disinterested resident of the area. She said that while in her kitchen she heard yelling and walked out on the porch. There she saw a lot of people. One man- was on the ground and “this other guy hit him with a gun, and he was stomping him and kicking him.” The victim was kicked hard and was not moving. She said that she did not see a weapon anywhere around the man on the ground.

The defendant is six feet tall and weighs about 190 to 195 pounds. Arthur Camel was five feet seven or eight inches tall and weighed approximately 140 to 150 pounds.

ASSIGNMENT OF ERROR NO. 4

During the state’s cross-examination of defendant the following was said:

“Q. Did you go back by the Camel house that afternoon or late that night?
A. Did I go back there? No, I didn’t go back.
Q. Didn’t drive by there?
A. Yeah, I passed by there.
Q. Did you shoot at that house?
A. No, I didn’t shoot.
Q. You’re sure?
A. I’m sure.
Q. You never shot a gun — fired three shots into the house?
A. No, I didn’t.
Q. You’re sure about that?
A. Yeah.”

The defendant contends that this was impermissible reference to another crime alleged to have been committed by the defendant and the trial judge committed reversible error in denying his motion for a mistrial under La.C.Cr.P. Art. 770(2). Additionally, defendant argues that even if evidence of such crime might be admissible under La.R.S. 15:445 and 446 to establish intent, it was inadmissible in this instance because of the state’s failure to give the prior notice required by State v. Prieur, 277 So.2d 126 (La.1973).

In our opinion the state’s questions as to firing shots into the house were improper, particularly in view of the prosecutor’s statement that he did not intend to offer any evidence to establish that the defendant actually fired shots at the victim’s house. However, we are convinced that Smith’s rights were not substantially prejudiced thereby and that the error was harmless.

Defendant’s testimony with respect to self-defense was not corroborated by a single witness and it is obvious that in this attack the defendant at least intended to inflict great bodily harm. From the evidence presented in regard to the beating and cause of death, the likelihood that Camel’s death resulted from a blow struck by a bystander rather than those administered by the defendant is far too remote to be reasonably possible.

Thus, the evidence of defendant’s guilt is overwhelming. In our opinion there is no reasonable possibility that the state’s question as to defendant shooting at the house, with the defendant’s negative answer, might have contributed to the conviction. Therefore, we are able to declare a belief that the error pointed out in this assignment was harmless beyond a reasonable doubt. State v. Gautreaux, 377 So.2d 289 (La.1979); State v. Gibson, 391 So.2d 421 (La.1980).

ASSIGNMENT OF ERROR NO. 6

In this assignment defense counsel contends that reversible error occurred in connection with the denial of a motion for mistrial based on the following objectionable testimony of Detective Robert Sadesky concerning his interrogation of the defendant at the police station:

“Q. Did he tell you that he knew of anyone there who was present that witnessed this — this fight?
A. He said that there was one subject in the neighborhood that he knew as Rick.
Q. Did he know his last name or anything?
A. He didn’t mention his last name.
Q. Did he tell you anything that Rick knew about this case?
A. He advised us that after the incident took place that the subject Rick came up to him and told him that he had had enough.
Q. Who had enough?
A. That the victim had had enough, and the suspect then proceeded to say that he’s still moving. He still wants some more.”

One of the grounds for this objection asserted in defendant’s brief is that the inculpatory statement mentioned was improper rebuttal because it should have been offered during the state’s case in chief. However, the record reflects that the only grounds for the objection stated at the trial were that defendant was not informed prior to the opening statement that the state intended to introduce the inculpatory statement as required by La.C.Cr.P. Art. 768 and that no proper foundation had been laid to attempt to impeach the defendant’s testimony through this prior inconsistent statement. Be that as it may, the statement allegedly made by defendant in regard to the beating is obviously an inculpatory statement requiring notice under Article 768 and its admission in evidence was error. However, for the reasons pointed out above we are convinced that there is no reasonable possibility that the evidence complained of might have contributed to the conviction and we are able to declare a belief that the error was harmless beyond a reasonable doubt.

These assignments of error therefore lack merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., and DENNIS, J., dissent.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeals, Second Circuit, and Judge G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in the decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.


text:
    STATE of Louisiana ex rel. Charles Ucless FOBB v. STATE of Louisiana.
    No. 81-KH-0782.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Charles Ucless Fobb, applying for writs of habeas corpus. Parish of Jefferson. Nos. 17948, 22547 and 22792.

Writ denied.


text:
    STATE of Louisiana v. Willie BRUINS.
    No. 81-K-1100.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiána, applying for writ of certiorari or review. Parish of Rap-ides. No. 196668.

Granted. The matter is to be consolidated for argument with defendant’s appeal, State v. Bruins, 81-KA-1065.


text:
    STATE of Louisiana v. Elmore WILLIAMS.
    No. 81-K-0892.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Elmore Williams, applying for remedial writs. Parish of Orleans. No. 280-918.

Writ granted. The trial court’s ruling granting the state’s motion to sever is reversed and set aside. (See, State v. Jones, 396 So.2d 1272 (La.1981); and the case is remanded to the trial court for further proceedings.


text:
    STATE of Louisiana v. Bob DEAN, Sr., David Guillot, Winborn E. Davis, Joseph Anders, Jr., and Billie Dean.
    No. 81-K-0829.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re State of Louisiana, applying for writs of mandamus, certiorari, and review. Parish of East Baton Rouge. Nos. 7-80-669 and 7-80-668.

Granted. The ruling of the district court on the motion to quash is reversed (see, State v. Morris, 397 So.2d 1301, La.1981) and the case is remanded.


author: DIXON, C. J.,

text:
    Joseph JOHNSON, Jr. v. CONTINENTAL INSURANCE COMPANIES, et al.
    No. 81-C-1270.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Joseph Johnson, Jr., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 396 So.2d 2.

Not considered. Not timely filed. See La.Sup.Ct.Rules, Rule 10, § 4(b).

DIXON, C. J.,

concurs. Timeliness, when the writ is filed more than one day after the due date, may be proved only with an official postmark or receipt or certificate showing time of mailing.


text:
    Yvonne THOMAS, Individually and as Administratrix of the Estate of her Minor Child, Stacey A. Thomas, and Albert Thomas v. TRANSPORT INSURANCE COMPANY, United Transport Company, and Layman Riley Brittain.
    No. 81-C-0857.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Yvonne Thomas, Individually, etc., et al., applying for reconsideration of denied writ, of May 1, 1981, Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 360.

Not considered. Judgment final. See, Rule 9, Section 6.


text:
    In re the Matter of Attorney General William J. GUSTE, Jr. Superseding the District Attorney of the Twenty-Fifth Judicial District.
    No. 81-K-0948.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Leander H. Perez, District Attorney, 25th Judicial District, applying for reconsideration of granted writ with order, of May 18, 1981, and for a stay order. Parish of Plaquemines. No. 62463.

Denied.


text:
    STATE of Louisiana v. Marie WILLIAMS.
    No. 81-K-0996.
    Supreme Court of Louisiana.
    June 11, 1981.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for supervisory writs and stay order. Parish of Orleans. No. 109-575, M — 1.

Denied.

MARCUS, J., would grant the writ. See his dissent in State v. Lacour, 398 So.2d 1129 (La.1981).


text:
    STATE of Louisiana ex rel. Woodrow BEACH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1110.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Woodrow Beach, applying for remedial writs. Parish of East Baton Rouge. No. 89293.

Denied. Moot.


text:
    STATE of Louisiana v. James E. ROSIER, Jr.
    No. 81-K(A)-1125.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re James E. Rosier, Jr., applying for remedial writs. Parish of LaSalle. No. 22847.

Writ denied.

WATSON and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Douglas Wayne JOHNSON v. Warden Hayden DEES.
    No. 81-KH-1060.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Douglas Wayne Johnson, applying for writ of mandamus. Parish of East Feli-ciana. No. 3-79-452.

Denied. Moot.


text:
    Margaret A. COON v. Debroah Ann Sinus LANDRY, et al.
    No. 81-C-1226.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Margaret A. Coon, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1144.

Granted.


text:
    STATE of Louisiana ex rel. Charles Ucless FOBB v. STATE of Louisiana.
    No. 81-KH-0782.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Charles Ucless Fobb, applying for reconsideration of a denied writ, of April 27, 1981. Parish of Jefferson. Nos. 17948, 22547 and 22792.

Denied.


text:
    Lawrence REGIRA, Jr., et al. v. Ralph FALSETTA, et al.
    No. 81-CA-1337.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Lawrence Regira, Jr., et al., applying for reconsideration of a writ granted in part and denied in part, on May 28, 1981. Parish of Ascension. No. 29053.

Denied.

BLANCHE, J., would grant the writ.


text:
    James G. FORSTALL v. HOTEL DIEU HOSPITAL, et al.
    No. 81-C-1382.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re James G. Forstall, applying for writ of review or other supervisory writ. Parish of Orleans. No. 12475.

Denied.

DIXON, C. J., concurs, because the fund was cast in judgment, unnecessarily, if it was not named a defendant. See, R.S. 40:1299.44B(1).

LEMMON, J., concurs. Relator may reurge his motion when the record is before the court of appeal.


text:
    STATE of Louisiana v. Sammy HUFFMAN.
    No. 81-K-1585.
    Supreme Court of Louisiana.
    June 16, 1981.
   In re Sammy Huffman, applying for writs of review and a stay order. Parish of Terrebonne. Nos. 87636 and 110565.

Granted. The defendant is entitled to receive copies of “rap sheets” of state witnesses. State v. Harvey, 358 So.2d 1224 (La.1978).

MARCUS, J., dissents from granting of writ.


text:
    STATE of Louisiana v. Felton SHERMAN.
    No. 81-K-1569.
    Supreme Court of Louisiana.
    June 18, 1981.
   In re Felton Sherman, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. Nos. 117876 and 118157.

Writ denied. See, State v. Burnette, La., 400 So.2d 672.


text:
    STATE of Louisiana ex rel. Clarence RANDOLPH v. STATE of Louisiana.
    No. 81-KH-1062.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Clarence Randolph, applying for writ of mandamus. Parish of Orleans. No. 267-145.

Granted in part. Relator is granted thirty days within which to file additional assignments of error in this Court and in the trial court. Otherwise denied. Relator’s attorney has agreed to furnish relator with copy of transcript. See 81-KA — 1176.


text:
    Danny M. McMELLON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY LICENSE CONTROL & DRIVER IMPROVEMENT DIVISION.
    No. 81-C-1447.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Danny M. McMellon, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 397 So.2d 31.

Denied.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ. Acts 220 and 347 of the 1979 Regular Session do not constitute interpretative legislation because they represent changes in the law. Furthermore, the changes cast doubt on the constitutionality of R.S. 32:1479(3) which now appears to delegate broad legislative functions to the judiciary.


text:
    Thomas J. BARRON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 81-C-1448.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Thomas J. Barron, applying for writs of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 397 So.2d 29.

Denied.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ for reasons assigned in No. 81 — C—1447, McMel-Ion v. State. La.. 401 So.2d 1187.


text:
    R. Carl ABSHIRE, et ux. v. W. D. L. INVESTMENTS, INC., et al.
    No. 81-C-1540.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re W.D.L. Investments, Inc., et al., applying for supervisory and remedial writs. Parish of East Baton Rouge. No. 218470.

Not considered. Not timely filed. Rule 10, § 5(b).


text:
    STATE of Louisiana ex rel. Harold McCOLLUM v. CLERK OF COURT, 24TH JUDICIAL DISTRICT COURT, JEFFERSON PARISH.
    No. 80-KH-2824.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Harold McCollum, applying for writ of mandamus. Parish of Jefferson.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Clarence RANDOLPH and Harold George Randolph v. STATE of Louisiana.
    No. 80-KH-2921.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Clarence Randolph and Harold George Randolph, applying for remedial writs. Parish of Orleans. Nos. 267-145 and 162.

Writ denied.


text:
    STATE of Louisiana ex rel. Melvin L. BROWN v. PRESIDING JUDGE 29TH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, State of Louisiana.
    No. 81-KH-0464.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Melvin L. Brown, applying for writs of habeas corpus, certiorari, mandamus, and remedial writs. Parish of St. Charles. No. 31669.

Denied. Moot.


text:
    STATE of Louisiana v. Shaun McINTIRE.
    No. 81-K-0539.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Shaun Mclntire, applying for remedial writs. Parish of Jefferson. No. 412566.

Denied.


text:
    STATE of Louisiana ex rel. Wayne D. THOMAS v. STATE of Louisiana.
    No. 81-KH-0741.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Wayne D. Thomas, applying for writ of habeas corpus. Parish of Orleans. No. 264-958.

Writ denied. Appeal is pending; record is being prepared.