author: BRADLEY, Judge.

text:
    LITTLE CAESAR’S, INC. v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Civ. 1766.
    Court of Civil Appeals of Alabama.
    July 18, 1979.
    Rehearing Denied Aug. 22, 1979.
    John D. Cates, Jr., Montgomery, for appellant.

      Joe W. Adams of Steagall & Adams, Ozark, for appellees.
   BRADLEY, Judge.

Appellant, Little Caesar’s, Inc., the operator of a lounge located on the premises of Little Caesar’s restaurant, is the holder of club liquor license number 1527 issued by the Alabama Alcoholic Beverage Control Board. In March 1978 the Board revoked the license for violations of ABC Regulation Numbers 44 and 30, Section (4). Licensee unsuccessfully petitioned the Circuit Court of Montgomery County for reinstatement of its license, and now appeals to this court.

We note at the outset that judicial review of administrative acts and decisions is limited in scope, and ordinarily the courts will only pass on the questions of whether the administrative agency has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary. See generally, 73 C.J.S. Public Administrative Bodies and Procedure § 202 et seq. (1951).

A court may not set aside an order of a fact-finding administrative body, acting within the field of its designated powers, unless such order is illegal, capricious, or unsupported by evidence. Id.; Alabama, T. & N. R. Co. v. United States, 207 F.Supp. 638 (S.D.Ala.1962). We review this case with the foregoing principles in mind.

ABC Regulation No. 44 reads as follows:

No licensee shall permit topless or bot-tonless [sic] dancers or performers or any other lewd or indecent conduct on the premises of such licensee.

Licensee was found guilty of violating this regulation based on a finding that it had “allowed indecent exposure by waitresses.”

In a case recently before this court, Blood Brothers, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 218 (Ala.Civ.App.1979) petition for cert. granted 386 So.2d 220 (Ala.1979), we held that ABC Regulation No. 44 is unconstitutional because its language is so vague that the conduct it purports to regulate is essentially unlimited, and because men of common intelligence must necessarily guess at its meaning and differ as to its application.

We adhere to the position set forth in Blood Brothers, supra, and conclude that as a matter of law the revocation of Little Caesar’s club license may not be based upon a finding of guilt under ABC Regulation No. 44. Accordingly, the balance of our review in this case is concerned only with those issues relating to ABC Regulation No. 30, Section 4.

ABC Regulation No. 30, Section 4 reads:

The ABC licensee shall be held responsible for and accountable to the ABC Board for all criminal conduct which occur on or suffered to occur on any part of the ABC licensed premises. Where the Board finds such criminal conduct to be allowed, caused, permitted, or suffered to occur by the licensee, such licensee’s license shall be subject to suspension, revocation, or other disciplinary action by the Board.

Licensee was found guilty of violating this regulation based on a finding that it had allowed criminal conduct to occur on the licensed premises; to wit, walking around with drinks, prostitution (on July 19, 20, and 21, 1977), and selling beer without Mobile County Revenue Stamps.

In connection with the charges brought under Regulation 30, Section 4, licensee makes the following arguments on appeal: (1) there was no direct evidence regarding prostitution presented to the Board sufficient to base a finding of guilt on that charge; (2) the so-called crime of “walking around with a drink” does not exist as a matter of law; and, (3) licensee should not be subjected to any further punitive action for the charge of selling beer without Mobile County stamps, because it had previously paid a fine of $25 to the City of Mobile for that offense.

Licensee argues on appeal that the ABC Board’s findings regarding the alleged occurrences of prostitution were based on hearsay evidence presented to the Board and not upon substantial legal evidence. Licensee cites us to Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 265 So.2d 154 (1972), wherein this court said:

The order of an administrative board is not to be vacated because of receipt of evidence, not admissible under general rules of evidence, so long as there is sufficient legal evidence to sustain the order. However, such illegal evidence will not be considered by the reviewing court in determining if there was “substantial evidence” to support the order of the Board. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183.

In Edmondson we concluded that the circuit court improperly considered hearsay evidence in reviewing the administrative board’s order.

On the other hand, the Board cites Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963), as authority for the proposition that administrative boards are not bound by strict rules of evidence and that allegations made in an administrative hearing may be proved by probative evidence which might be inadmissible in a court of law. The Barnes opinion goes on to say that the administrative body could properly consider hearsay evidence in arriving at its decision.

However, in several cases which postdate the Barnes opinion, supra, our supreme court has stated that when proceedings of an inferior tribunal are reviewed on common-law writ of certiorari, the order of the inferior tribunal should be sustained if there is any substantial or legal evidence to support the order. See e. g., Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123, 176 So.2d 483 (1964); Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968). Other cases predating Barnes, supra, are to like effect. See e. g., Ex parte Wells, 267 Ala. 444, 103 So.2d 328 (1958) (reviewing court must look to see if there is substantial evidence to support the judgment).

“Substantial evidence” means legal evidence. Eagle Motor Lines, Inc. v. Alabama Public Service Commission, Ala., 343 So.2d 767 (1977).

This court is bound to follow the later of two pronouncements by the supreme court. Code of Alabama 1975, § 12-3-16; Moran v. State, 34 Ala.App. 238, 39 So.2d 419 (1949); Ex parte Berry, 288 Ala. 731, 259 So.2d 276 (1972). Accordingly, insofar as the Barnes case conflicts with more recent cases cited above, this court adheres to the principles set forth in the latter which indicate that review of the Board’s order on a common-law writ of certiorari should be for the purpose of ascertaining whether that order is supported by substantial or legal evidence. We find the principles stated in Edmondson, supra, applicable to the case at bar.

The testimony regarding the alleged occurrences of criminal activity on the licensed premises on July 19, 20 and 21, 1977 was given by several officers of the Mobile Police Department and Mobile County Sheriff’s Department who had undertaken surveillance of the licensed premises during 1977. Excluding the inadmissible hearsay and double hearsay, their testimony concerning the charges of prostitution was essentially as follows. On July 19,1977 police Sgt. Calhoun observed a white male leave the lounge accompanied by a white female who was an employee of the lounge. Sergeant Calhoun followed the pair to a nearby motel where the pair entered a room and emerged a short time later. The pair returned to the lounge where the female employee was let out.

On July 20,1977 Officer Thomas, while in the lounge, observed a white female employee of the lounge approach a white male at the back of the lounge. The pair conversed, then the male handed the female some money. The female summoned a second female employee who took the money towards the office of the club, and shortly thereafter returned to the pair; whereupon the pair left the club together.

The owner of the club, Mr. Victor J. Vitiello, testified that the former manager of the lounge, Buddy Boykin, was “alright except that he ran prostitution.” Mr. Vi-tiello further stated that when he found out this later, he fired Boykin.

The parties to this appeal agree in brief that there is no state law prohibiting acts of prostitution by females over the age of eighteen years. See Code of Alabama 1975, § 13-7-1, which concerns the employment, procurement, etc. of girls over ten and under eighteen years of age for the purpose of prostitution. However, the Board contends that these alleged incidences, of prostitution violate an ordinance of the Mobile City Code, Section 41-13.1, which reads:

It shall be unlawful and an offense against the City of Mobile for any person to engage in an act of prostitution. An act of prostitution shall be deemed complete when a person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

We think the legal evidence set forth above is sufficient under our standard of review to support the Board’s finding of guilt of a violation of Regulation No. 30, Section 4. This court will not presume to substitute its own judgment for that of the Board in regard to the finding of the occurrences of prostitution.

Licensee next argues that the statute, Code of Alabama 1940, Tit. 29, § 44 (currently codified at Code of Alabama 1975, § 28-3-160), does not make criminal the act of “walking around with a drink in hand.” That statute reads:

All such beverages must be sold or served to consumers or persons seated at tables. It is the intent and purpose of this chapter that no so-called open saloon be operated within this state. The alcoholic beverage control board shall have authority to promulgate rules and regulations for the carrying out of this chapter. Any person who violates any of the provisions of this chapter or any rule or regulation promulgated in conformity with this chapter shall be guilty of a misdemeanor and upon conviction, shall be fined not more than five hundred dollars for each offense, and in addition may be imprisoned in the county jail for a period not to exceed six months.

There is no indication of record that the ABC Board had promulgated any regulation for carrying out the mandate of this statute, nor for the purpose of defining the phrase “open saloon.”

A penal statute, such as Tit. 29, § 44, must be strictly construed and may not be extended by construction. State v. Ballard, Ala.Cr.App., 341 So.2d 957 (1976), writ quashed, Ala., 341 So.2d 962 (1977). The statute, strictly construed, requires only that patrons of licensed premises be seated at tables when the beverages are sold or served. “Walking around with a drink in hand” is not specifically prohibited. Nor can it be reasonably inferred from the statute’s stated purpose that the law attempts to prohibit such conduct. See Words & Phrases, Vol. 29A, p. 386, and cases cited therein, apparently defining “open saloon” as any place where alcoholic beverages are sold by the drink for human consumption on the premises where sold. Thus, in the absence of administrative interpretation or more specific legislative mandate, we agree with licensee that “walking around with a drink in hand” is not a crime in this state; and a revocation of a license based on a finding of guilt on that charge is without legal foundation.

Regarding the charge of selling beer without Mobile County stamps, licensee admits that such a violation occurred but argues that no further punitive action should be taken against it for that offense since licensee has already paid a $25 fine to the City of Mobile for the offense. In view of licensee’s own admission of guilt to this charge and its plea of guilty submitted at the Board’s hearing, we find no error in the Board’s finding of guilt as to this violation.

In summary, we conclude that the evidence supports the Board’s findings of guilt as to the charge of allowing prostitution to occur on the licensed premises and as to the charge of selling beer without Mobile County stamps. For the reasons herein set forth, we further conclude that the revocation of appellant’s license may not be based on a finding of guilt under ABC Regulation No. 44, nor upon a finding of guilt on the charge of allowing the “crime” of “walking around with drinks.”

In view of our conclusions, we reverse this case and remand it to the circuit court with instructions for that court to further remand the case to the ABC Board for a reconsideration in light of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte The ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD. In re LITTLE CAESAR’S, INC. v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    78-841.
    Supreme Court of Alabama.
    May 9, 1980.
    Joe W. Adams of Steagall & Adams, Ozark, for petitioner.
    John D. Cates, Jr., Montgomery, for respondents.
   PER CURIAM.

See Blood Brothers, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 220 [Ala., 1980], released this date.

REVERSED AND REMANDED.

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

FAULKNER and BEATTY, JJ., dissent and adopt the dissent in Blood Brothers, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 220 [Ala., 1980], released this date.

BLOODWORTH, J., not sitting.


author: PER CURIAM. FAULKNER, Justice

text:
    Ex parte LITTLE CAESAR’S, INC. In re LITTLE CAESAR’S, INC. v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    78-840.
    Supreme Court of Alabama.
    May 9, 1980.
    Rehearing Denied June 6, 1980.

      John D. Cates, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for respondents.
   PER CURIAM.

We granted the petition in this case to consider the question of whether the ABC Board can take “judicial” notice of the ordinances of municipalities.

ABC Regulation No. 30, Section 4, is set out in the opinion of the Court of Civil Appeals and is as follows:

The ABC licensee shall be held responsible for and accountable to the ABC Board for all criminal conduct which occur[s] on or [is] suffered to occur on any part of the ABC licensed premises. Where the Board finds such criminal conduct to be allowed, caused, permitted, or suffered to occur by the licensee, such licensee’s license shall be subject to suspension, revocation, or other disciplinary action by the Board.

The ABC Board found a violation of this regulation “by allowing criminal conduct to occur on the licensed premises; to wit, walking around with drinks, prostitution (on July 19, 20, and 21, 1977), and selling beer without Mobile County Revenue Stamps.” The Court of Civil Appeals upheld the Board’s finding on the prostitution charge, but reversed the Board on the other two findings of criminal conduct. We affirm.

The petitioner contends that, because the ordinance of the City of Mobile defining prostitution was not introduced at the proceedings before the Board, there was no evidence to show that prostitution occurred on the premises of the licensee. It is the petitioner’s contention that the introduction of this ordinance is necessary to uphold the Board’s findings. We disagree. The legislature has conferred broad powers on the ABC Board in the regulation of liquor in this state; it has conferred the power to promulgate rules and regulations and to suspend or revoke liquor licenses upon a showing that the licensee has violated “any of the laws of this state” relating to traffic in liquor. We think this power is sufficiently broad to allow the Board to take judicial notice of the municipal ordinances of “wet” cities. The Mobile City ordinance, Section 41-13.1 provides:

It shall be unlawful and an offense against the City of Mobile for any person to engage in an act of prostitution. An act of prostitution shall be deemed complete when a person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

The record establishes beyond any doubt that conduct falling within this definition took place on the premises of the licensee.

The decision of the Court of Civil Appeals affirming the action of the Board based upon a violation of Regulation No. 30, Section 4, is affirmed. Its decision holding Regulation No. 44 unconstitutional is reversed. See Blood Brothers, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 220 [Ala., 1980], released this date.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

FAULKNER, J., dissents.

BLOODWORTH, J., not sitting.

FAULKNER, Justice

(specially concurring in part and dissenting in part):

I feel like the lady appearing before a judge attempting to have her paramour pay child support. She told the judge (when the paramour denied her charge), “Your Honor, I have had other lovers, but believe me, your Honor, this child is mostly his.” So, here, I “mostly” dissent.

The majority opinion holds that the ABC Board may revoke a club owner’s liquor license because (1) suspicious acts between a man and a woman constitute prostitution; (2) walking around with a drink in one’s hand is a crime; (3) Regulation 44 regarding topless or bottomless dancers is constitutional, and (4) selling beer without the stamps is illegal.

Of course, I concur that a licensee can have his liquor license revoked for selling beer without the required tax stamps. But, I dissent as to statements 1, 2 and 3.

The evidence of prostitution as set out in the Court of Civil Appeals’ decision is this:

On July 19, 1977 police Sgt. Calhoun observed a white male leave the lounge accompanied by a white female who was an employee of the lounge. Sergeant Calhoun followed the pair to a nearby motel where the pair entered a room and emerged a short time later. The pair returned to the lounge where the female employee was let out.
On July 20,1977 Officer Thomas, while in the lounge, observed a white female employee of the lounge approach a white male at the back of the lounge. The pair conversed, then the male handed the female some money. The female summoned a second female employee who took the money towards the office of the club, and shortly thereafter returned to the pair; whereupon the pair left the club together.
The owner of the club, Mr. Victor J. Vitiello, testified that the former manager of the lounge, Buddy Boykin, was “alright except that he ran prostitution.” Mr. Vitiello further stated that when he found out this later, he fired Boykin.

The Court of Civil Appeals and now the majority of this Court have held that the evidence was sufficient to warrant the finding of a violation of Mobile’s City Code reading as follows:

It shall be unlawful and an offense against the City of Mobile for any person to engage in an act of prostitution. An act of prostitution shall be deemed complete when a person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. [Emphasis added.]

Sergeant Calhoun does not say that he saw any money pass between the man and woman. All he saw was that the couple entered a motel room and came out a short time later. Suspicious? Yes. But, where is the evidence that sexual conduct was entered into for a fee? And, where is the evidence that the woman agreed to engage in sexual conduct? The answers to these questions are, there is no evidence. Next, Officer Thomas saw a man hand a woman employee some money. A second woman took the money to the club office and returned to the couple. The man and woman left the club together. This is more flimsy than Calhoun’s evidence. Vitiello’s evidence was pure hearsay.

While I do not condone prostitution, in the spirit of what is right, or wrong, I cannot bring myself to sanction the administration of law in this fashion.

I have already given my views on Regulation 44 in my dissent in Blood Brothers, Inc. v. Alabama Alcoholic Beverage Control Board [Ala., May 9, 1980], 386 So.2d 220 (1980).

Finally, if “walking around with a drink in your hand” is a crime, then every patron of a club, bar or any other place that sells alcoholic beverages, at one time or another commits a “crime.” To hold that conduct to be a crime is utterly ridiculous.


text:
    LITTLE CAESAR’S, INC. v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Civ. 1766.
    Court of Civil Appeals of Alabama.
    July 23, 1980.
   BRADLEY, Judge.

The prior opinion of this court, 386 So.2d 224, has been reversed in part and remanded by the supreme court, 386 So.2d 228. On remand to this court, and in compliance with the supreme court’s opinion of May 9, 1980, the judgment of the Montgomery County Circuit Court holding ABC Regulation No. 44 constitutional is affirmed.

However, in view of the opinion of the supreme court affirming this court’s holding that Little Caesar’s, Inc. was not guilty of the charge of “walking around with drinks,” we remand this cause to the circuit court with instructions that the cause be sent back to the ABC Board for further consideration.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    Hattie Ruth NORRIS v. Theresa McQUEEN.
    Civ. 2267.
    Court of Civil Appeals of Alabama.
    July 9, 1980.
    Robert S. MacLeod, Bessemer, for appellant.
    Michael W. McCormick, Birmingham, for appellee.
   HOLMES, Judge.

After a hearing, the appellant was ordered committed to a mental institution by judgment of the Probate Court of Jefferson County. The only issue presented by the appellant is whether § 22-52-15, Code of Ala.1975, denies her equal protection and due process because it prevents her from having a trial by jury via a trial de novo to the circuit court. The appellant raises this constitutional issue for the first time on appeal.

The case of Liles v. Liles, Ala.Civ.App., 380 So.2d 908 (1980), is dispositive of the instant case and we refer interested parties to it.

For failure to charge error in the trial or judgment below, that judgment must be affirmed on appeal.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Patrick Anthony BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 54578.
    Supreme Court of Florida.
    May 22, 1980.
    Rehearing Denied July 30, 1980.

      Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, in and for Clay County, in which the court adjudicated the appellant guilty of murder in the first degree and followed the jury recommendation in sentencing him to death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On February 15, 1978, at approximately 7:30 A.M., the body of Mrs. Tsuyako Thomas was discovered on the floor behind the counter in her restaurant. She had been stabbed to death. A knife later identified as belonging to the appellant was found underneath the body. The appellant’s cap was also found at the scene. Shoe track impressions taken from an area to the rear of the restaurant showed similarity to the appellant’s boots. Traces of blood found on the appellant’s boots were of the same blood type as the victim.

On February 18, 1978, police officers arrested the appellant. They advised him of his rights in the standard fashion. The appellant told them that he was present at and witnessed the stabbing and that he knew the attacker but only by first name. He said that he struggled with the assailant briefly, then fled the scene in fear.

After further interrogation, the appellant made statements of an incriminating nature. The interrogation and the statements were tape-recorded. Later that day he was taken before a county court judge for first appearance. The judge advised the appellant of his rights to remain silent and to have an attorney present during questioning. Subsequent to the appearance before the judge, the appellant signed a written confession.

Before trial, the appellant moved to suppress both his initial oral incriminating statements and his written confession. At a hearing on the motions, the court heard the tape of appellant’s interrogation.

THIRD VOICE: What time did you leave? Now someone took you to Bellair in a pickup truck. I know that for sure. I don’t know where you went to in Bellair and Allen and I have followed you every footstep from the time you were supposed to be at the Jiffy Store that night and the time you left your trailer until you went to the Jiffy Store, ’til you went to Lou’s and back to your trailer, and from your trailer to Bellair, and to the people you talked to in Bellair, and all about it. And, it’s looking dim for you, boy. I’m not kidding you.
FIRST VOICE: If you get convicted of first degree murder, now it’s the damn electric chair or life. Now that’s the way — that’s what it amounts to. But, if you — you know, if you committed second degree murder, it’s what? Five? What? Twenty? Twenty years to life and you’re eligible for parole at five or seven, see? That’s second degree. That's what you did. I know that’s what you did. That’s what you did. Second degree murder. But, if we put all this evidence we got before a jury, you are liable to get convicted of first degree murder. Look, we know you were — you were in the area. We know you went to the restaurant. Your knife was found under that woman. Your knife, that’s been identified as your knife, it’s even got your name on it. How is a jury—
SECOND VOICE: Engraved on it.
FIRST VOICE: Engraved on it. How is a jury — how is a jury going — now, you think of 12 people that don’t know a damn thing about the law sitting back there listening to this, see? They don’t know as much about the law as me or Aired or maybe not as much as you; but, they are sitting there listening. All right. Here — here he was. His knife was under the woman. We’ve got your boots that’s got blood all over them. All over them. Even where they were polished. We are going to present that to the jury. We are going to let them look at it. We’ve got casts, photographs of where your heel impression went into the dirt. We know they’re your boots; they’ve been identified as your boots, right?
SECOND VOICE: Yes, sir.
FIRST VOICE: Not the ones you were wearing when you were in here, when you were brought in here this afternoon. We are talking about some other boots. You know what I’m talking about, don’t you?
SECOND VOICE: Yes, sir.
FIRST VOICE: Those are your boots, aren’t they?
SECOND VOICE: Yes, sir.
FIRST VOICE: You were wearing them that night, weren’t you?
SECOND VOICE: Yes, sir.
FIRST VOICE: And why did you lie to us and tell us that you had them others on? It ain’t going to do you any good to lie, Pat. If you done it, tell us, and tell us right now, and we’ll help you out on this thing. They are going to come to us and they are going to say, “Did you cooperate?” We are going to say, “yes, he did. He’s sorry for what he done. We believe he can be rehabilitated.” That’s what we will tell the parole people when the [sic] come to us. If you hang back and try to lie to us, we are going to say, “yes, he lied to us. He hasn’t admitted it. We had to go to a jury trial. The jury found him guilty. They sent him away for life.” And that’s the way it will be. You will be there the rest of your damn life. Hell, tell us about it. We put a guy in jail, just like you, just about the same age, for the same thing not one month ago. Now, he was on drugs too. Hell, you’re sorry for what you’ve done. I know you are. Tell us about it. Get it off your conscience. We’ll help you out. I’m serious. Won’t we, Aired? I tell you, a damn jury is going to convict you, Pat. We got all kinds of evidence on you. Even if what you told us is true, a jury will still convict you of first degree murder. You’ve got 12 people sitting back there and they’ve read about all this stuff in the papers and, man, these people will just string you by the nape of your neck right now if they get their hands on you. Hell, we know you done it. You know you done it. We can prove it in court. Admit it. Say you’re sorry. Try and get off light. That’s your only recourse.
SECOND VOICE: Yeah, but that ain’t the only thing you can do is say you’re sorry.
FIRST VOICE: Why ain’t it?
SECOND VOICE: ’Cause that don’t bring back someone’s life.
FIRST VOICE: You are sorry you done it, though, ain’t you?
SECOND VOICE: I ain’t saying I done it.
FIRST VOICE: Well, I know you ain’t saying you done it; but, see, I know you did it. Aired knows you did it. Jennings Murrhee knows you did it. Isn’t that right? Hell, it ain’t the worst thing in the world. We do this stuff all the time; this is our business. This is our business. And I guarantee you when' we go to court, if we go to a trial on this thing, buddy, they are going to find you guilty. I’ll swear they are. They will find you guilty and they will send you away for the rest of your life if they don’t put you in the electric chair. Where you go ahead and cooperate and tell us you’ve done this thing and tell us how you done it, tell us where that billfold is, tell us where the billfold is, we’ll help you out on this thing. We’ll get— you’ll get out of this thing on second degree murder. But we got you. We got you locked up in this thing. And that’s the truth. You ain’t but 19 years old.
SECOND VOICE: 18.
FIRST VOICE: Eighteen years old. You’ll be out on the streets when you’re 30, or less than that, but you won’t if we go to a trial and you’re convicted of first degree murder. You can count on that.
THIRD VOICE: Why don’t you just go ahead and straighten up and tell us?
FIRST VOICE: Do you want to tell us about it? Tell us about it. Cooperate with us. We’ll help you out. You’ve known me all your life. You know I ain’t no liar and I don’t put stuff on people they don’t deserve. I’ll tell the parole and probation people you cooperated with us. Aired will, too. And I’ll get Jennings Murrhee to tell them that you cooperated. We know you done it. Hell, tell us about it and cry about it and pray a little bit about it and you’ll be all right.

The officers raised the spectre of the electric chair, suggested that they had the power to effect leniency, and suggested to the appellant that he would not be given a fair trial. It was under the influence of these threats and promises that the appellant made an oral confession. The appellant’s motion to suppress his oral statements made before his first appearance was granted.

Following the initial interrogation which lasted about two hours, the appellant had his first appearance before a county court judge. He was in the presence of the judge for approximately fifteen minutes. He was advised of his rights. The judge became aware that the appellant had made a statement but he was not informed of the nature of the statement. The judge was not informed of the threats and promises that produced the statement. He did not inform the appellant that the initial statements could not be used against him.

After first appearance, the appellant went back into the custody of the same officers who performed the initial, tape-recorded interrogation. They told him they wanted a written statement of what he had confessed to them earlier. The appellant wrote out a confession and signed it. The written confession was admitted into evidence over the appellant’s objection.

The appellant contends, among other matters, that the trial court committed reversible error in denying his motion to suppress his written confession. He argues that the statement should have been excluded because it was the product of the same clearly established coercive influences that rendered his oral statements inadmissible.

In order for a confession or an incriminating statement of a defendant to be admissible in evidence, it must be shown that the confession or statement was voluntarily made. Coffee v. State, 25 Fla. 501, 6 So. 493 (1889). The due process clause of the Fourteenth Amendment to the United States Constitution prohibits the states from using the coerced confession of an accused against him. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80. L.Ed. 682 (1936). In a state prosecution, the standard by which the voluntariness of a confession is to be determined is the same as that which applies to federal prosecutions under the fifth amendment privilege against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

Under that standard, when a question arises as to the voluntariness of a confession, the inquiry is whether the confession was “free and voluntary; that is [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . .” Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). For a confession to be admissible as voluntary, it is required

that at the time of the making the confession the mind of the defendant be free to act uninfluenced by either hope or fear. The confession should be excluded if the attending circumstances, or the declarations of those present at the making of the confession, are calculated to delude the prisoner as to his true position, or to exert improper and undue influence over his mind.

Frazier v. State, 107 So.2d 16, 21 (Fla.1958); Harrison v. State, 152 Fla. 86, 12 So.2d 307 (Fla.1943).

The appellant’s initial statement was coerced and was properly excluded by the trial court. The appellant contends that the written confession should have been suppressed also, on the ground that there were no intervening facts or circumstances sufficient to break the stream of events and insulate the written confession from the coercive influences that produced the earlier statement.

The burden of showing that the appellant’s written statement was voluntarily made was on the state. Lawton v. State, 152 Fla. 821, 13 So.2d 211 (Fla.1943). The state was required to establish voluntariness by a preponderance of the evidence. Wilson v. State, 304 So.2d 119 (Fla.1974); McDole v. State, 283 So.2d 553 (Fla.1973).

Once it is established that there were coercive influences attendant upon an initial confession, the coercion is presumed to continue “unless clearly shown to have been removed prior to a subsequent confession.” State v. Outten, 206 So.2d 392, 396 (Fla.1968). The inquiry is whether, under the circumstances, the influence of the coercion that produced the first confession was dissipated so that the second confession was the voluntary act of a free will. See, e. g., Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1953); United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1943).

The state contends that the trial court was correct in holding that the intervening appearance before a judicial officer, who gave a rights advisory, was sufficient to dissipate the coercive influences and render the subsequent written confession voluntary.

In Lyons v. Oklahoma, an initial confession was improperly obtained by coercion. A second confession was held to be freely given and admissible. In addition to an intervening warning of constitutional rights, the following, circumstances, in contrast to the instant case, were present: twelve hours elapsed from the time of the first statement to the time of the second; the second statement was given in response to questioning by an authority different from the one that exerted the improper influence; and the persons who applied the coercion were not present at the time of the second statement.

The trial court, in the instant case, in holding that the coercion did not affect the voluntariness of the written statement, cited State v. Oyarzo, 274 So.2d 519 (Fla.1973); State v. Holt, 354 So.2d 888 (Fla. 4th DCA 1978); and Jetmore v. State, 275 So.2d 61 (Fla. 4th DCA 1973).

In State v. Oyarzo, the question was whether a second and proper rights advisory was sufficient to dissipate the improper influence that accompanied the first rights advisory given upon arrest. There was no question of two separate statements. The issue was whether the defendant’s statement was unaffected by the improper influence created when the arresting officer pretended to be a friend and protector, deluding the defendant as to his true position. We held that the second warning dissipated the coercive influence so that the statement was admissible. The threats and direct promises of leniency shown to have existed in the present case were much more intense and pervasive than the single comment made in Oyarzo.

In State v. Holt, the suspect being interrogated made an incriminating statement without having received Miranda warnings. He repeated the statement later following proper warnings. The appellate court cited Rhome v. State, 222 So.2d 431 (Fla. 3d DCA 1969), for the rule that:

Where two confessions have been given, the mere fact that the first confession may have been obtained as a result of improper influences does not necessarily make inadmissible a subsequent confession, provided there has been a showing that the improper influences have been removed.

State v. Holt, 354 So.2d at 890. In Holt, the impropriety accompanying the first statement was the omission to advise the suspect of his rights. Thus a proper warning was enough to overcome the impropriety associated with the earlier statement. In the case at bar the impropriety consisted of actual threats, promises of leniency, and statements calculated to delude the appellant as to his true position.

Jetmore v. State, 275 So.2d 61 (Fla. 4th DCA 1973), concerned the question whether the primary taint of an illegal arrest and search rendered inadmissible a subsequent confession made after proper warnings. The statement was held to have been properly admitted on the ground there was sufficient evidence for the conclusion that the confession was voluntary and not affected by the illegality of the arrest and search. The question whether proper warnings have purged the taint of an illegal arrest is different from the question whether actual coercion continues to operate despite warnings.

Upon examining the totality of the circumstances surrounding the confession, we conclude that the intervention of appearance before a judicial officer was not sufficient to break the stream of events and dissipate the coercive influences exerted on the appellant. The trial court erred, therefore, in ruling that the written confession was voluntary. This error requires reversal and a new trial.

The judgment and sentence are vacated. The decision of the court below is reversed and the case remanded for a new trial.

It is so ordered.

ENGLAND, C. J., BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ„ and VANN, Associate Justice, concur.

ADKINS, J., dissents.


text:
    Mattie Lee BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 56603.
    Supreme Court of Florida.
    July 17, 1980.

      Richard L. Jorandby, Public Defender and James K. Green of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is a direct appeal from an order of the Fifteenth Judicial Circuit Court upholding the constitutionality of the state’s jury selection statute. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

In 1978, Mattie Bryant shot and killed Ossie Polk. Following her arrest, an indictment charged Bryant with first degree murder. Pursuant to plea negotiations, she pled nolo contendere to second degree murder, reserving the right to appeal the trial court’s denial of her motion to dismiss the indictment and to quash the petit jury panel. Bryant received a fifteen-year sentence — five years to be served in prison with the balance on probation.

Two major points are raised in this appeal. The first is whether the trial court erred in denying appellant’s motion to dismiss. Bryant charges that the denial was error because section 40.01, Florida Statutes (1977), is unconstitutional for three reasons: 1) no women or blacks have been selected as foremen of Palm Beach County grand juries since 1973; 2) blacks have been underrepresented on Palm Beach County grand juries; and 3) young adults (ages 18 to 29) have been similarly underrepresented. Appellant’s second point is whether the trial court erred in imposing a mandatory minimum sentence where the indictment failed to cite section 775.087(2), Florida Statutes (1977), and failed to specifically allege that the weapon used was a firearm.

Constitutionality of the Statute

It is well established that the states may not systematically and deliberately preclude service on juries merely because of a person’s race. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). This does not mean, however, that a defendant has the right to demand that members of any certain race be included on the indicting grand jury. Id. The fact that juries do not statistically reflect the racial makeup of a community does not, by itself, show an invidious discrimination prohibited by the equal protection clause. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Furthermore, the equal protection cases have never held that a law or other official act is unconstitutional solely because it has a racially disproportionate effect. Id.

Bryant bases her first claim on the selection of grand jurors solely from voter registration lists. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), sets out the test for determining if a prima facie showing of an equal protection violation in grand jury selection has been made. The person challenging the selection procedure

must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. . Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.

430 U.S. at 494, 97 S.Ct. at 1280, 51 L.Ed.2d at 510. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). If a prima facie case of discrimination is established, the burden of proof shifts to the state to show that permissible racially neutral selection criteria and procedures produced the seemingly impermissible result. Alexander v. Louisiana.

To show discriminatory selection under Castaneda, a defendant must establish (a) substantial underrepresentation of (b) an identifiable group that (c) is a recognizable, distinct class which (d) is singled out for different treatment by (e) comparing the group’s proportions in both the population and on grand juries (f) over a significant period of time. After holding an evi-dentiary hearing, the trial court found appellant’s proof insufficient. We hold, as did the trial court, that Bryant has failed in her burden of proving prima'facie discrimination in the jury selection process.

There is no question that blacks and women constitute cognizable classes. Merely showing the existence of a distinct group, however, is not sufficient. Substantial un-derrepresentation over a significant period of time must also be proved.

We have gleaned the following facts from the statistics presented by appellant. The statistical period for the claims of underrepresentation of blacks and improper selection of foremen is only the five years from 1974 through 1978. During this period, the black population of Palm Beach County ranged from 13.4% (1977 and 1978) to 14.3% (1974) of that county’s total population. The proportion of blacks on the voter registration list ranged from 8.0% (1976 and 1978) to 9.5% (1974). Of the grand juries empaneled between 1974 and 1978, 229 jurors were of known race; fifteen of the 229 were black. The overall proportion of blacks on these juries was 6.6%, ranging from a low of 3.0% (1978) to a high of 10.4% (1975). We find that appellant’s statistics do not show substantial un-derrepresentation for a significant period of time either as a matter of law or as a matter of fact.

Although this point is not reached due to our holding that appellant has failed to establish a prima facie equal protection violation, the Palm Beach County selection process is, at least on its face, racially neutral. The three jury commissioners select names totally at random from cards containing no notation of race. The use of the voter registration list is, therefore, color blind. While the legislature might choose to supply viable supplemental jury sources, the failure to do so does not equal purposeful exclusion.

Appellant’s proof on the under-representation of young adults is also deficient. Numerous courts have heard claims that young adults constitute a cognizable class. See United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975); United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971). Only one, however, has ever held that young adults comprise a recognizable, distinct group. United States v. Butera, 420 F.2d 564 (1st Cir. 1970). This Court, following the majority of jurisdictions, holds that young adults do not constitute a cognizable class. Appellant, therefore, has failed to meet the threshold burden for showing a prima facie equal protection violation regarding the presence of young adults on Palm Beach County grand juries.

Sufficiency of the Indictment

We find no merit to Bryant’s claim that her indictment was insufficient due to a failure to mention the mandatory minimum sentence statute or to allege specifically that the weapon used was a firearm. Criminal defendants have a right to notice of the specific charges against them. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Under Florida law, however, there is no requirement that a defendant be advised of any mandatory minimum sentence. Knowles v. State, 356 So.2d 885 (Fla.3d DCA 1978); Gonzalez v. State, 300 So.2d 691 (Fla.2d DCA 1974). See also Scott v. State, 369 So.2d 330 (Fla. 1979) (upholding the constitutionality of section 775.087(2) in the face of an allegation that the statute does not put a defendant on notice that conviction would subject such defendant to that section’s provisions).

The indictment charged Bryant with killing Ossie Polk “by shooting him with a revolver.” Adopting the reasoning of the First and Third District Courts of Appeal, we hold that a revolver is a firearm within the meaning of sections 775.-087(2) and 790.001(6).

For the foregoing reasons, we uphold both the trial court’s denial of appellant’s motion to dismiss indictment and quash pet-it jury panel and the sentence imposed below.

Affirmed.

It is so ordered.

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

      . § 40.01, Fla.Stat. (1977). The portions of § 40.01 pertinent to this appeal read as follows:
      40.01 Qualifications and disqualifications of jurors.—
      (1) Grand and petit jurors shall be taken from the male and female persons at least 18 years of age, who' are citizens of this state and who have resided in this state for 1 year and in their respective counties for 6 months, and who are fully qualified electors of their respective counties; however, expectant mothers and mothers with children under 15 years of age, upon their request, shall be exempted from grand and petit jury duty.
      * * * * * *
      (3) In the selection of jury lists only such persons as the selecting officers know, or have reason to believe, are law-abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, shall be selected for jury duty.
      ******

      . § 775.087(2) reads as follows:
      (2) Any person who is convicted of:
      (a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes; or
      (b) Any battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties
      and who had in his possession a “firearm,” as defined in s. 790.001(6), or “destructive device,” as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.

      . This Court has upheld Florida’s selection procedure numerous times. Wilson v. State, 330 So.2d 457 (Fla.1976); Wilson v. State, 306 So.2d 513 (Fla.1975); Reed v. State, 292 So.2d 7 (Fla.1974). The federal courts have also upheld the state’s selecting grand juries from voter registration lists. Reed v. Wainwright, 587 F.2d 260 (5th Cir. 1979); Marshall v. Holmes, 365 F.Supp. 613 (N.D.Fla.1973). It should be noted that the United States Supreme Court has never found the selection of jurors solely from registration lists to be unconstitutional and that supplementation of such lists from other sources is not required by the Jury Selection Act of 1968. 28 U.S.C. § 1861 et seq. See United States v. Blair, 470 F.2d 331, 337 (5th Cir. 1972).

      . It should be noted that grand jury foremen are selected by the court from the jurors assembled after the jury has been empaneled. § 905.08, Fla.Stat. (1977). Although appellant has shown that no women or blacks were selected as jury foremen from 1974 to 1978, we refuse to ascribe to the trial courts a conscious, concerted plan not to select foremen from those groups.

      . Appellant’s claim on this issue also fails in another respect. The statistics on young adults cover only the year 1978. One year is statistically insignificant under Castaneda.

      . State v. Nunez, 368 So.2d 422 (Fla.3d DCA 1979); Martin v. State, 367 So.2d 1119 (Fla. 1st DCA 1979). See also Harris v. State, 370 So.2d 74 (Fla.2d DCA 1979) (a pistol is a firearm); Rogers v. State, 336 So.2d 1233 (Fla.4th DCA 1976) (a pistol is a firearm); Davis v. State, 215 So.2d 626 (Fla.3d DCA 1968) (a revolver is a pistol and a pistol is a firearm).


author: ALDERMAN, Justice.

text:
    Timothy Windell SULLIVAN et al., Petitioners, v. Lonnie PRICE, Respondent.
    No. 56634.
    Supreme Court of Florida.
    July 17, 1980.

      Robert P. Gaines of Beggs & Lane, Pensacola, for petitioners.
    Law Offices of Kerrigan, Estess & Rankin, Pensacola, and Walter H. Beckham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in Sullivan v. Price, 368 So.2d 614 (Fla. 1st. DCA 1979), which is in apparent conflict with Morrison v. Bohne, 274 So.2d 896 (Fla. 2d DCA 1973).

Only two of the issues which petitioners, defendants, seek to raise in this personal injury case merit discussion: first, whether expert medical testimony was a necessary prerequisite to the introduction of mortality tables and the giving of a jury instruction on their use in this case, and, second, whether expert medical testimony is a necessary predicate to a jury instruction on future damages. We agree with the result reached by the district court and hold that under the particular facts of this cause there was a sufficient basis in the evidence for introduction of the mortality tables and the giving of the challenged instructions.

On October 1, 1973, while off duty, the plaintiff, Lonnie Price, a motorcycle police officer, was in his garage working on his motorcycle when he observed defendant Timothy Sullivan and another person speeding up and down the road. He radioed the sheriff’s department on his motorcycle radio and requested that a “marked unit” be sent to the scene, but the department was unable to respond immediately. He then heard a cry for help and a request that the police be called. He notified the sheriff’s department that he was going to investigate what he supposed to be a felony in progress. Upon approaching the location of the cry for help on his motorcycle, he witnessed Sullivan “spin off” and he followed. Price testified that during his pursuit of Sullivan’s automobile, his motorcycle reached speeds of 95-100 mph. Sullivan claimed that he did not know he was being pursued and testified that after leaving the scene his top speed was 65 mph. The speed limit was 35 mph. According to Price, Sullivan abruptly slowed down on a curve, and Price, unable to stop in time, drove his motorcycle from the road into a wooded area to avoid a collision with a car approaching in the other lane.

As a result of this accident, Price broke his collarbone in three or four places. A pinning technique was used to repair the broken clavicle. This process required an incision above the clavicle and the placing of a pin in the fracture. The pin remained in the clavicle for approximately two months. Price has a permanent scar from the insertion and removal of this pin from his shoulder. This injury precluded Price from performing any work for three months and restrained him from performing any more than limited duty for three more months. For another year thereafter, he was incapacitated at least two days a week. In cold, damp weather, his shoulder would become inflamed, and he would have great difficulty holding anything with his left arm. Three and one-half years after the accident, he was terminated as a motorcycle policeman because of his inability to perform fully. He was transferred to the position of process server which was a demotion of two pay grades. Further, his blacksmith activities and his hobbies of calf roping and horseback riding were substantially curtailed.

He sued Sullivan, Stevens who was the owner of the automobile driven by Sullivan, and Stevens’ insurer, alleging that Sullivan’s negligent operation of Stevens’ automobile caused him to leave the road to avoid a collision with Sullivan, caused him to sustain permanent injury which impaired his work ability, and caused his motorcycle to be completely destroyed. During the trial, over defendants’ objection that there was no medical foundation for their introduction, the mortality tables were introduced into evidence. The trial court admitted the tables because the scar on Price’s shoulder, which had been exhibited to the court and the jury, was permanent. Expressly finding that there was evidence of future loss of earnings and evidence of permanence, the trial court, over defendants’ objection, instructed the jury on future damages and on the use of the mortality tables. The jury returned a verdict assessing Price’s damages at $70,000 and finding him 10 percent at fault and Sullivan 90 percent at fault. Judgment in the amount of $63,000 was entered for Price.

The district court affirmed and held that Price’s disability, which was not merely subjective, was sufficient to justify introduction of the mortality tables and that the jury instructions were proper even though no medical evidence was presented.

We agree that the evidence submitted was sufficient to warrant the introduction of the mortality tables and the giving of the challenged instructions. It was not the trial court’s duty to determine the weight or sufficiency of the evidence bearing on the continuing or permanent nature of the injuries since the credibility of the testimony and the weight of the evidence was for the jury to decide. Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980); William Penn Hotel v. Cohen, 101 So.2d 404 (Fla. 3d DCA 1958).

It previously has been established that evidence of permanent injury is an absolute prerequisite to the admission of mortality tables. Seaboard Air Line Railroad Co. v. Ford, 92 So.2d 160 (Fla.1955). This prerequisite was clearly met in this case when Price exhibited to the judge and jury his permanent scar from the surgical insertion and removal of the pin in his shoulder. The court properly admitted the mortality tables on the basis of this showing of permanent injury and properly instructed the jury on permanency as it relates to the mortality tables and their introduction.

Defendants also challenge the jury instruction on future damages on the basis that there was no medical testimony to establish the future effects of the injury. None of the decisions cited to us by defendants have definitively held that medical testimony is a prerequisite to a jury instruction on future damages.

The Second District Court of Appeal, in Tampa Transit Lines, Inc. v. Smith, 155 So.2d 557 (Fla. 2d DCA 1963), held that future damages were allowable although no expert testified that plaintiff’s disability would continue into the future. In Grant v. Hoffman, 151 So.2d 287 (Fla. 2d DCA 1963), cert. denied, 155 So.2d 694 (Fla.1963), the Second District held that the trial court had erroneously stricken plaintiff’s requested instruction as to her future damages of diminished earning capacity on the basis that there was no medical evidence before the jury that plaintiff’s injuries would reduce her earning capacity in the future.

Recently in Corbett v. Dade County Board of Public Instruction, the district court held that the trial court erred in refusing to instruct the jury on future damages. The court determined that the question of whether evidence is sufficient to warrant an instruction on future damages varies with the facts of each case and that the case before it was governed by cases holding that recovery is justified, even in the absence of expert testimony of the likelihood of future damages because “the nature of the injury, its duration, and lack of recovery at the time of trial, make it clear that pain and suffering will continue for at least sometime into the future.” 372 So.2d at 973. The court pointed out that although the testimony relating to plaintiff’s condition resulting from the injury was contradicted by testimony of other witnesses, this did not disentitle plaintiff to an instruction on future damages since it was not the province of the judge to determine the weight or sufficiency of evidence bearing on continuing or permanent injuries. The district court concluded:

The plaintiff was entitled to an instruction as to any claim legally supported by a view of the evidence, even though contradicted, which the trier of fact had a right to accept, see Menard v. O’Malley, 327 So.2d 905, 907 (Fla. 3d DCA 1976). Since the jury could properly have concluded that Dori’s alleged damages would not cease immediately upon the return of the verdict, the refusal to instruct on future damages was reversible error.

372 So.2d at 974.

We hold that expert medical testimony is not required as a prerequisite to a jury instruction on future damages. From the uncontradicted evidence of the nature of Price’s injury, its duration, his resultant demotion, and lack of recovery at the time of trial, the jury could have concluded with reasonable certainty that the injury’s consequences would continue into the future. We hold that the jury instruction on future damages was appropriate.

Accordingly, we approve the result reached by the district court affirming the judgment of the trial court.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ADKINS, J., concurs in result only.

      . The trial court instructed the jury as follows:
      If the greater weight of the evidence shows that Mr. Price has been permanently injured, you may consider the life expectancy in the mortality table which has been introduced for this purpose. Such table is not binding on you, but may be considered together with other evidence in the case bearing on his health, age, and physical condition before and after the injury, in determining the probable length of his life.

      . As to future damages, the trial court instructed the jury, as follows:
      [l]f you find for the Plaintiff, you shall state in your verdict the amount of money that the greater weight of evidence shows will fairly and adequately compensate him for his loss, injury or damage, including any such damage that he is reasonably certain to experience in the future and you shall consider the following elements:
      Any bodily injury sustained by Mr. Price and any resulting pain and suffering, disability, disfigurement, mental anguish, and loss of capacity for the enjoyment of life, experienced in the past or to be experienced in the future.
      There is no exact standard for fixing the amount of compensation to be awarded on account of such elements of damage. Any such award shall be fair and just in the light of all the evidence in the case.
      You should also consider any earnings or working time lost in the past or any loss inability to earn money in the future.


text:
    Johnnie Marion COTTON, Appellant, v. Evelyn BASS, as next friend, Mother, and Representative of Johnnie Mark Cotton and Devin Christopher Cotton, and The Florida Department of Health and Rehabilitative Services, Appellees.
    No. 57725.
    Supreme Court of Florida.
    July 17, 1980.
    Robert H. Grizzard, II, Lakeland, and William E. Vinson, Jr., of the Law Office of Denis L. Fontaine, Lakeland, for appellant.
    Charles L. Carlton of Carlton and Carlton, Lakeland, and Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for appellees.
   PER CURIAM.

Affirmed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ADKINS, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents.


author: PER CURIAM. BOYD, Justice,

text:
    Keith Virgil SOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 58238.
    Supreme Court of Florida.
    July 17, 1980.
    Harry W. Carls III, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The present case is before the Court on appeal from a trial court order upholding the constitutionality of section 39.04(2)(e)4. Having recently upheld this statute’s validity, State v. Cain, 381 So.2d 1361 (Fla.1980), we find the constitutional issue to be frivolous. This case is transferred to the District Court of Appeal, Fifth District, for resolution of the remaining issues raised on appeal.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

ADKINS, J., dissents.

BOYD, Justice,

concurs in part and dissents in part.

I concur with holding the statute constitutional, but I would decide all other issues also to conserve time and judicial labor.


text:
    THE FLORIDA BAR, Petitioner, v. Harry J. HAMILTON, Jr., Respondent.
    No. 58942.
    Supreme Court of Florida.
    July 17, 1980.
    Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for petitioner.
    Harry J. Hamilton, Jr., in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Unconditional Guilty Plea and Entry of Final Order of Discipline to violations of The Florida Bar Code of Professional Responsibility, Disciplinary Rule 9-102 and Florida Bar Integration Rule, article XI, Rule 11.02(4). We approve the Petition, and we hereby disbar Respondent, Harry J. Hamilton, Jr., from The Florida Bar. The disbarment shall be effective immediately. Costs in the amount of $598.26 are hereby taxed against the Respondent.

It is so ordered.

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


author: GLICKSTEIN, Judge.

text:
    Robert L. RICHWAGEN, Appellant, v. Gregory LILIENTHAL, Appellee.
    No. 79-139.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    Rehearing Denied Aug. 11, 1980.
    James W. Nowlin, Jr., of Nowlin & Adams, P.A., Delray Beach, for appellant.
    Frank B. Kessler of the Law Offices of Bennett S. Cohn, Lake Worth, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal from an amended final judgment of replevin entered against appellant, who was the plaintiff in the trial court, by which judgment appellant was held not to be entitled to possession of a twenty-seven-foot (27 ft.) Whitehawk boat and was assessed with attorneys’ fees for appellee and costs. We reverse.

The trial court made the following findings which are recited in the amended final judgment:

1. Plaintiff, Robert L. Richwagen, purchased the boat in question from one Mack Wilson in 1974 for the sum of $4,500. Mack Wilson gave a receipt and signed a transfer of ownership of the registration form and on the title certificate. The plaintiff, however, did not take the title certificate to the Florida Department of Natural Resources to have a new title issued in his name, and this was never done by the plaintiff.

2. On or about January 31, 1975 the plaintiff took the boat in question to Galli-gan’s Lakeside Marina, South Dixie Highway, Hypoluxo, Florida, and entered into an oral agreement to leave his boat at the yard for a monthly payment of $25 per month. The plan was to leave the boat there so Mr. Richwagen could work on it from time to time. According to Mr. Galligan, this boatyard attracts a number of “do it yourself people,” and on a few occasions Mr. Ri-chwagen was in the yard doing work on his boat. The boatyard filled out a card showing Mr. Richwagen’s name, address and telephone number and noted that he was to pay $25 per month.

3. Mr. Richwagen made a few payments over a period of time, but at no time were they regularly paid. Mr. Richwagen stated that at one time he thought he did not have to make rent payments because the boat had been damaged as a result of the negligence of the boatyard. The boatyard people, however, denied that they had been negligent, or that they had made any arrangement to abate the payments.

4. On May 11, 1977, Nancy Galligan, of the marina, wrote to Ortho B. Clark, Chief of the Bureau of Boat Registration, Department of Natural Resources, and asked for information on selling various boats. One of the boats she listed had the following notation. “FL 0789 RICHWAGEN.”

5. On May 17,1977, Mr. Clark answered the letter of the marina, and explained how to sell boats under Florida Statute 85.031, specifically listing the boat in question as being titled in the name of Mack Wilson, 7931 S.W. Tenth Street, North Lauderdale, Florida.

6. On May 21, 1977 the marina sent a letter to Mack Wilson at the above address, which letter was returned unclaimed.

7. On June 8, 9 and 10, 1977 the following notice was published in the Palm Beach Post, a newspaper published in Palm Beach County.

No. 605851: The following boats are being sold for back storage and repair bills at Galligan’s Lakeside Marina, 7848 S. Dixie Highway, Hypoluxo, FI.
FL 9398 AA FL 3986 AH
FL 2012 S FL 4116 AN
FL 5554 AT FL 0789 S
Published June 8, 9,10,1977

This notice was also posted in the following public places:

The South County Courthouse Annex
The Boynton Laundromat
The Marina itself

8. On June 21, 1977 a letter was received from Mr. Clark of the Department of Natural Resources re an application of title for the boats, and setting forth how to apply for a title under Florida Statute 85.-031.

9. Subsequently, in a private transaction, the marina sold the boat in question to the defendant, Mr. Lilienthal, who was a bona fide purchaser for value, for a trade-in of some engines and some money. The marina said that the sale was being conducted under Florida Statute 85, and the defendant has had possession of the boat since the date he purchased the same from the marina.

10. In October 1977 the plaintiff, Robert L. Richwagen, learned that the boat was no longer in the boatyard and inquired of its whereabouts. The plaintiff had not been informed of any of the attempts to sell the boat, nor had he received any notices that the boat was being sold.

11. The plaintiff filed a suit for replevin on October 21, 1977.

12. An order to show cause was issued to the defendant on October 24,1977, which was heard by the Court on November 15, 1977.

13. The Court as a result of the hearing on November 15, 1977, issued an order dated December 9, 1977 leaving possession of the boat in the defendant.

14. At a subsequent hearing, the plaintiff presented testimony of an attorney as to a Reasonable attorney’s fee, and the Court found that the defendant was entitled to recover attorney’s fees from the plaintiff under Florida Statute 78.20.

Based upon the foregoing findings, the trial court made the following conclusions:

1. That the plaintiff is not entitled to possession of the vessel in question and shall take nothing from the defendant and the defendant shall go hence without day.

2. That the plaintiff is found to be indebted to the defendant in the sum of $1,500 being reasonable attorney’s fees for the representation of the defendant’s attorney in this cause, for which sum let execution lie.

3. That the plaintiff shall pay to the defendant the sum of $64, being the cost of per diem for deposition of plaintiff, sheriff’s service for trial subpoenaes, and witness fees and mileage, for which sum let execution lie.

Appellant’s first point is multifaceted in that he argues the trial court erred in concluding the marina was a warehouseman; that even if it was, no warehouseman’s lien existed to warrant the sale to appellee; and that, accordingly, appellee was not a bona fide purchaser under the Uniform Commercial Code.

Our first obligation is to determine whether the evidence supports the foregoing findings of the trial court.

We have no difficulty in determining that there was competent evidence for the trial court to conclude the marina was a warehouseman. That term is defined in Section 677.102(l)(h), Florida Statutes (1975), as “a person engaged in the business of storing goods for hire.” A marina certainly stores boats and in our opinion, boats are “goods” within the definition in Section 677.102(l)(f), Florida Statutes (1975):

“Goods” means all things which are treated as movable for the purposes of a contract of storage or transportation.

In Paumier v. Barge BT 1793, 395 F.Supp. 1019, 1029 (E.D.Va.1974), the court said:

Within the last decade a number of courts have determined that ships are “goods” within the meaning of the Uniform Commercial Code. Fireman’s Fund American Insurance Co. v. Boston Harbor Marina, Inc., 406 F.2d 917, 919 (1st Cir. 1969); R. C. Craig, Ltd. v. Ships of Sea, Inc., 345 F.Supp. 1066 (S.D.Ga.1972); Silver v. Sloop Silver Cloud, 259 F.Supp. 187 (S.D.N.Y.1966). See UCC § 2-105(1); Fla.Stat. § 672.2-105(1).

We find no distinction between boats and ships in determining what is meant by “goods.” Our problem lies in the absence of any warehouse receipt in this case having been issued by the marina to appellant. A warehouse receipt is defined in Section 671.-201(45), Florida Statutes (1975) as:

a receipt issued by a person engaged in the business of storing goods for hire.

Such document need not be in any particular form. Section 677.202(1), Florida Statutes (1975). Its significance lies in the principle that a warehouseman’s lien is expressly dependent upon such document. Section 677.209(1), Florida Statutes (1975), provides in part:

A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.

While there are no Florida cases directly on point and a general dearth of authority on the subject, the language of the statute is plain. One New York trial court in Dathar Corp. v. Lemkin, 14 U.C.C. Reporting Service 1207, held:

With respect to defendant’s claim that he has a warehouse lien, that lien is statutory and pursuant to UCC § 7-209 is only available upon goods for which a warehouse receipt has been issued. No claim is made that such a receipt was ever issued by defendant.

The trial court in this case, while it did not expressly do so, apparently concluded that a card in the marina’s file, which is part of the supplemental record on appeal, was a "warehouse receipt.” The subject card contains appellant’s name, address and phone number, a description of the boat and the date it was placed in storage, the monthly charge by the marina and the record of appellant’s payments in 1975. It is described in paragraph 2 of the amended final judgment.

We are of the opinion that the subject card is not a warehouse receipt issued to appellant but is a bookkeeping or office file card for the marina’s internal use.

With such break in the chain and the absence of any warehouseman’s statutory lien, the subsequent sale to appellee by the marina, ostensibly pursuant to Section 677.-210(1), Florida Statutes (1975), would not sustain, under the Uniform Commercial Code, a judgment for appellee.

Contained in the same file in which the marina’s bookkeeping card appears is an invoice to appellant dated June 1977 with the notation “Bill sent June 1977,” and the following information:

Previous balance due $540.80
Storage 175.00
Services (for moving, reblocking and pumping the boat) 65.00
Tax 7.60
Total Amount $738.40

The marina’s invoices for labor or services performed upon the boat support a lien by the marina under Section 713.58(1), Florida Statutes (1975), which provides in part:

713.58 Liens for labor [or] services on personal property.
(1) [Liens shall exist] in favor of persons performing labor or services for any other persons, upon the personal property of the latter . ...

Such lien for labor or services on personal property appears in Part II of Chapter 713, Florida Statutes (1975) and may be enforced by a sale of the personal property pursuant to Section 85.031, Florida Statutes (1975). However, unlike Section 677.210, Section 85.031 only permits a public sale and does not specify that a bona fide purchaser at such sale will prevail over the claims of a lienee notwithstanding non-compliance by the lienor with the procedures set forth in the statute.

In the present ease, the sale to appellee was private and not in compliance with Section 85.031.

To summarize our conclusion upon the first point raised by appellant, we conclude that the marina was a warehouseman but did not perfect its statutory lien for storage by the issuance of a warehouse receipt, and that in the absence of a warehouseman’s lien, the marina had nothing to enforce by means of private sale pursuant to Section 677.210, Florida Statutes (1975). We further conclude that while there may have been evidence to support a lien under Section 713.58, there was non-compliance with the procedures required by Section 85.031, Florida Statutes (1975), so that ap-pellee is not entitled to possession of the boat.

Accordingly, we reverse upon this point and remand for entry of judgment for appellant upon his complaint and for trial or other disposition upon appellee’s counterclaim.

The second point raised by appellant is that the trial court erred in awarding attorney’s fees to the defendant. Because we reverse on the merits, we must also reverse the award of attorney’s fees.

REVERSED and REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . Fireman’s Fund American Ins. Co. v. Boston Harbor Marina, 406 F.2d 917 (1st Cir. 1969): In view of the broad statutory definition of “goods,” we do not think'it can be said that a yacht, as distinguished from other personal property, falls outside the statutory ambit.

       “Goods” means all things which are treated as movable for the purposes of a contract of storage or transportation. Mass.G.L. ch. 106 § 7-102(f).

      . We concur with the conclusion that implicit in “issuance” is delivery. In Vannett v. Reilly-Herz Automobile Co., 42 N.D. 607, 173 N.W. 466 (1919), the court described a warehouse receipt as a:
      [w]ritten acknowledgment by the warehouseman that he has received and holds the goods therein described for the person to whom it is issued. (Emphasis added).
      Here, there is no evidence of issuance to appellant of any receipt.

      . The significance here of such a sale in enforcement of a warehouseman’s lien pursuant to Section 677.210, Florida Statutes (1975), is twofold. First, the sale may be private and more important:
      (5) A purchaser in good faith of goods sold to enforce a warehouseman’s lien takes the goods free of any rights of persons against whom the lien was valid, despite noncompliance by the warehouseman with the requirements of this section.
      Prior to January 1, 1967, the effective date of the Uniform Commercial Code in Florida, Section 678.27, Florida Statutes (1965), provided in part:
      A warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods.
      There was no mention in the section of a warehouse receipt.
      Further, the sale is of no assistance to appel-lee under a general theory of bailment as the bailee/marina was not authorized by the bail- or/appellant to sell the boat. 8 Am.Jur.2d, Bailments § 86.

      .An earlier invoice, dated January 3, 1977, reflects $540.80 was owed at that time, of which amount $170 was for moving, reblocking and pumping the boat. Accordingly, the total sum apparently due in June 1977 for services performed on the boat was $235.
      We consider the invoices in the marina’s file upon the assumption that they were considered by the trial court, this court having ordered on May 21, 1979 that the record be supplemented with all exhibits “admitted at the trial.” The subject file in which the invoices appear is part of that supplemental record, notwithstanding there is affixed to the envelope in which the file was sent a card bearing the initials of the trial judge and the legend “For Identification as Ct. exhibit A.”


author: SCHWARTZ, Judge.

text:
    Dominic BRUNO, Appellant, v. TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-1620.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Groland & Brown, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellee, Travelers Insurance Company, provided uninsured-underinsured protection to the appellant, Dominic Bruno. Bruno was involved in an automobile accident with one Darorre who was covered by a $25,000 liability policy with Government Employees Insurance Company (GEICO). He thereafter almost simultaneously sued Darorre and GEICO in the circuit court, and demanded arbitration against Travelers on his underinsured claim that his damages exceeded the $25,000 GEICO limits. As permitted and required by Arrieta v. Volkswagen Ins. Co., 343 So.2d 918 (Fla. 3d DCA 1977), the UM arbitration proceeded before the resolution of the third party action. On July 28, 1978, the arbitrators rendered an award against Travelers finding Darorre negligent and fixing Bruno’s damages at $17,500. Travelers took no affirmative action to challenge the award. On January 12,1979, however, Bruno filed a petition for confirmation of the award in the Dade County Circuit Court. On February 7, 1979, he settled his case with Darorre and GEICO for precisely the same amount as the award, $17,500. In its response to the confirmation action, Travelers pointed out this admitted fact, and contended that the award should not be confirmed. The trial judge entered judgment for Travelers dismissing the petition for confirmation, and Bruno appeals. We affirm.

Section 627.727(1) Florida Statutes (1977) expressly states that UM coverage provides protection only to the extent that it is in excess of, and does not duplicate benefits available to the claimant from the tortfeasor. See Dickey v. Grange Mutual Casualty Co., 370 So.2d 1234 (Fla. 2d DCA 1979). It has been held — we think correctly —that, under this provision, Bruno would have no right to recovery from Travelers simply because the damages awarded by the arbitrators were less than the limits of the GEICO policy, which were thus potentially “available” to him. Government Employees Ins. Co. v. Lang, 387 So.2d 976 (Fla. 2d DCA 1980); Arrieta v. Volkswagen Ins. Co., supra, 343 So.2d at 921 (dictum). It is all the more certain that he is entitled to no underinsured benefits in the present, a fortiori situation in which he has actually received all of his assessed damages from the tortfeasor. See Jones v. Travelers Indemnity Co. of Rhode Island, 368 So.2d 1289 (Fla.1979); Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla. 1978); State Farm Mutual Auto. Ins. Co. v. Napoli, 380 So.2d 1325 (Fla. 4th DCA 1980); Hall v. Liberty Mutual Ins. Co., 376 So.2d 1183 (Fla. 1st DCA 1979). On the merits, the judgment below was therefore obviously correct.

Even Bruno does not dispute this conclusion. Relying on Travelers Ins. Co. v. Allen, 356 So.2d 1287 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 893 (Fla.1978) and Carter v. State Farm Mutual Auto. Ins. Co., 224 So.2d 802 (Fla. 1st DCA 1969), however, he argues that the insurer’s failure to move to modify or vacate the award within the 90-day period provided by the arbitration code, Sections 682.13-.14 Florida Statutes (1977), requires that the award be confirmed. We disagree. Unlike the situations in Allen and Carter, the issues now raised by Travelers are not ones which inhere in the award itself. Rather, they concern the contention that, by virtue of extrinsic facts and the terms of its policy and the Florida law, the company is not contractually or statutorily obliged to pay the award. These are questions which only the courts, and not the arbitrators,. have the authority to resolve. In this situation, the controlling decision is American Fidelity Fire Ins. Co. v. Richardson, 189 So.2d 486 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 814 (Fla.1967), which squarely holds that such a defense may be asserted, as in this case, in response to a petition to confirm which comes more than 90 days after the award. Indeed, this was just the procedure employed below in securing a resolution of the identical question in GEICO v. Lang, supra.

Furthermore, we note that the settlement actually received by Bruno occurred more than six months after the award — well beyond the 90-day period he now invokes. We decline to adopt a rule under which a claimant coúld manipulate the procedure approved by Arrieta, and thereby achieve an unjustified windfall, simply by delaying resolution of his third party claim until well-subsequent to the arbitration proceeding. See, GEICO v. Lang, supra.

Affirmed.

      . Accord, United States Fidelity and Guaranty Co. v. State Farm Mutual Automobile Ins. Co., 369 So.2d 410 (Fla. 3d DCA 1979); Liberty Mutual Ins. Co. v. Reyer, 362 So.2d 390 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1369 (Fla. 1979); Government Employees Ins. Co. v. Friedman, 344 So.2d 288 (Fla. 3d DCA 1977).

      . The present panel of this court has recently followed Richardson, and rejected the applicability of Allen to a very similar situation. Par-do v. Lumbermens Mutual Casualty Co., 366 So.2d 164 (Fla. 3d DCA 1979).


author: FRANK D. UPCHURCH, Judge.

text:
    James DUFF, d/d/a Playmate Escort Service, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH CO. et al., Appellees.
    No. 78-1251/T4-129.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.

      James K. Freeland, Orlando, for appellant.
    Philip H. Trees, Orlando, for appellee Melvin G. Colman, Sheriff of Orange County-
    Waiter R. Moon, Orlando, for appellee Southern Bell.
   FRANK D. UPCHURCH, Judge.

Appellant, James Duff, operated a business named the Playmate Escort Service. He filed a complaint seeking a temporary and permanent injunction to prevent termination of telephone service and a declaratory judgment.

At the hearing, it was established that appellant had falsely testified that:

1. He had never coached or instructed his female employees on procedures which should be utilized to avoid being arrested on prostitution charges;
2. That he had never told anyone that he coached or instructed his female employees on procedures which should be utilized to avoid being arrested on prostitution charges; and
3. That he had not never [sic] told one Jovan Martinez that he coached or instructed his female employees on procedures which should be utilized to avoid being arrested on prostitution charges.

Appellant then took a voluntary dismissal. Subsequently, a hearing was held on an order to show cause why he should not be held in contempt. The court found him in contempt as to each false statement and sentenced him to three consecutive sentences.

The first point which we consider is whether the alleged false statements constitute contempt as a matter of substantive law.

While appellant admits that the statements were false, he contends, as a matter of substantive law, that they are not contemptuous.

Three criteria are necessary to establish that the giving of false testimony constitutes contempt: (1) the alleged false answers must have an obstructive effect; (2) there must exist judicial knowledge of the falsity of the testimony; and (3) the testimony elicited must be pertinent to the issues at trial. Mitchell v. Parrish, 58 So.2d 683 (Fla.1952).

A review of the proceedings before the lower court establishes that all three elements constituting actionable contempt were present. It is well established that perjured testimony obstructs the proper administration of justice. Sauls v. State, 354 So.2d 435 (Fla.3d DCA 1978). Secondly, it is clear that the court had knowledge of the falsity. The taped conversation of appellant and Officer Ray posing as Jovan Martinez was played during the proceedings and established the falsity of appellant’s previous statements. Thirdly, the testimony was clearly pertinent to the issue at trial. Appellant had initiated the action, seeking to prevent the termination of phone service allegedly used to further an illegal activity. Thus, it was necessary to determine whether appellant was aware of or was involved in prostitution. As all three elements were present, appellant’s false testimony did constitute actionable contempt.

Appellant’s second point is whether he could be sentenced for each false statement.

Appellant contends that his three false statements constitute one “contempt,” and therefore it was error to impose a separate sentence for each statement. We reluctantly agree.

In an analogous case, the defendant had verbally attacked the court and had accumulated six separate contempt judgments and sentences. However, the appellate court found that only one contempt was committed despite the separate outbursts and vacated five of the convictions. Butler v. State, 330 So.2d 244 (Fla. 2d DCA 1976), cert. denied, 429 U.S. 863, 97 S.Ct. 168, 50 L.Ed.2d 142 (1976). See also Nelson v. State, 208 So.2d 506 (Fla. 4th DCA 1968) in which the defendant was convicted and sentenced for one contempt for making six false statements in his motion for post-conviction relief.

The three questions which appellant falsely answered were variations of the same theme: whether appellant had coached or instructed his female employees on the procedures utilized to avoid arrest for prostitution. Each question was merely more specific than the preceding one. This situation is distinguishable from that of Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957), in which defendant was convicted of three counts of contempt. In Nilva, the defendant 1) testified falsely, 2) disobeyed the subpoena by failing to produce certain documents and 3) disobeyed a second subpoena issued a month later. Nilva involved three separate acts; here, the questions involved the same issue. Once appellant falsely answered the first question, he would continue to answer in the same manner whether two or two hundred variations were propounded. Therefore, we conclude that it was error to convict and sentence for more than one contempt and remand to the trial court to vacate the second and third convictions and sentences.

AFFIRMED in part; REVERSED in part and REMANDED.

ORFINGER and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Michael Alan SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-519.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.
    Michael Alan Sanders, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

This appeal questions a summary denial of a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure.

The indictment under which appellant was charged with robbery alleged in pertinent part that Michael Alan Sanders:

“ . . . did not on the 31st day of August, 1975, in Orange County, Florida, in violation of Florida Statute 813.011 unlawfully, by force, violence, assault and putting in fear, rob, steal, and take away from the person and custody of . . ”

another, certain described property. Appellant pleaded guilty to the charge and was sentenced to imprisonment for nineteen years, less time served.

In his motion for relief, appellant seeks discharge on the ground that the trial court lacked jurisdiction to sentence him because Section 813.011, Florida Statutes (1973) had been amended and transferred to Section 812.13, Florida Statutes (Supp.1974), which became effective July 1,1975 and therefore did not exist on the date the crime was committed. Additionally, appellant asserts that the indictment did not contain language to determine if he was armed with a weapon or unarmed “ . . . therefore being the difference between a felony of the first degree or second degree.”

Appellant’s contention that the court lacked jurisdiction because the incorrect statute was referred to in the indictment is without merit, because the necessary elements of the crime of robbery were alleged under either statute, so it cannot be said that the indictment wholly failed to allege a crime, and there is no showing that appellant was misled to his prejudice. Sinclair v. State, 46 So.2d 453 (Fla.1950); Selley v. State, Case No. 78-115/T4-44, Fla. 5th DCA, May 28, 1980; King v. State, 336 So.2d 1200 (Fla. 2d DCA 1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977).

By the language of appellant’s pro se motion previously quoted here, it is obvious that he contends that the maximum sentence he could have received was fifteen years for a second-degree felony, and that his sentence of nineteen years exceeds the maximum authorized by law. This point has merit. The State contends that this cannot be raised by a motion for post-conviction relief and that it should have been raised on direct appeal, but Rule 3.850, Florida Rules of Criminal Procedure, clearly states that a motion for post-conviction relief may assert that the sentence imposed was in excess of the maximum authorized by law. A sentence not authorized by law is always subject to collateral attack. Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979).

Since the indictment did not charge that appellant was armed with either a firearm, a deadly weapon or a weapon, he could only be found guilty of a second-degree felony under Section 812.13, Florida Statutes (Supp.1974) and he should have been sentenced accordingly.

The judgment of the trial court is therefore affirmed insofar as it denies relief as to conviction, but the sentence is hereby set aside. The case is remanded to the trial court to resentence appellant for a second-degree felony, and appellant shall be present before the court for such re-sentencing.

Judgment of conviction AFFIRMED. Sentence SET ASIDE and remanded for resentencing.

COBB and FRANK D. UPCHURCH, JJ., concur.

      . 812.13, Florida Statutes (Supp.1974), Robbery, more detailed than its predecessor Section 813.011, provides:
      (1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
      (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in chapter 775.
      (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in chapter 775.
      (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon or other weapon, then the robbery is a felony of the second degree.
      (3)An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.


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

text:
    PUBLIC GAS COMPANY and Ranger Ins. Co., Appellants, v. Robert E. SMITH, Appellee.
    No. RR-96.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellants.
    Michael B. Murphy of Stanley, Wines, Williams & Smith, Auburndale, for appel-lee.
   ROBERT P. SMITH, Jr., Judge.

Considering that the employment application inquiry, “list any physical defects,” could reasonably have been interpreted by the applicant to inquire about “defects” existing and symptomatic at the time of the inquiry, a negative answer, in spite of the applicant’s possible knowledge of an abnormal back x-ray taken several years earlier, is not necessarily to be interpreted as a false application for employment, defeating workers’ compensation benefits. Seen in this light, the deputy commissioner’s order is supported by substantial competent evidence, and it is

AFFIRMED.

SHIVERS, J., and WOODROW M. MELVIN, (Retired) Associate Judge, concur.


text:
    Stanley Lynn THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. PP-287, PP-288.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgment of conviction is reversed, and new and separate trials are ordered, for improper consolidation of these unconnected offenses, committed on May 23,1979 and June 2, 1979. Fla.R.Crim.P. 3.151; Paul v. State, 385 So.2d 1371 (Fla.1980).

ROBERT P. SMITH, Jr., and SHIVERS, JJ., and WOODROW M. MELVIN (Retired), Associate Judge, concur.