author: ANSTEAD, Judge.

text:
    John BREY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2727.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This appeal by the defendant is from a judgment and sentence adjudicating him guilty of auto theft and sentencing him to five years imprisonment. The defendant claims reversible error in the admission at trial of oral statements made by him which were not previously disclosed by the state in its response to his demand for discovery.

At trial evidence was introduced which tended to show that defendant had possession of a stolen motor vehicle which had been painted over and which was discovered in his garage. Neighbors of the defendant testified to overhearing a loud domestic quarrel emanating from the home of the defendant and his wife, during which defendant was overheard stating that he had a stolen vehicle in his garage and didn’t care who knew it. Both neighbors had seen the car in its original condition and again after it had been painted over.

The neighbors called the police and complained of the disturbance created by the domestic quarrel. A police officer was dispatched to defendant’s home and questioned the defendant. No Miranda warnings were given, the officer indicating that defendant was not then suspected of any criminal offense. At trial, over defendant’s objection, the police officer testified that defendant denied the alleged admissions overheard by his neighbors concerning the stolen vehicle and also refused to allow a search of his garage to determine whether there was a stolen vehicle inside. The existence of defendant’s statements to the police officer was not disclosed in the state’s answer to defendant’s demand for discovery. Defendant contends that the trial court erred in admitting the oral statements made by him without conducting a Richardson inquiry into the state’s discovery violation.

In addition to the above evidence, further testimony established that the police returned the following day, secured permission to search the garage from defendant’s mother-in-law, the owner of the house, and discovered the stolen vehicle.

At trial, when the police officer was called as a prosecution witness, the following discussion ensued:

MR. CARLSON: Judge, the first thing I would like to say is that on the State’s Answer to Discovery, it indicates that there are written, recorded and/or oral statements of the Defendant, oral statements witnessed by Daniel and Annette Morgan and Charles and Dorothy Flaer. This comes as a surprise to me that there are any oral statements made to this witness.
I would also object to the introduction of any statements. I do not think it is proper because to begin with, it is hearsay evidence; that it is not an admission of any kind; that while it contains certain exculpatory statements, I think the jury would get a very bad view of it; it also makes reference to belligerent attitude. The statements are in response to a complaint and also in response to a report of a stolen vehicle, and I think that any time a Defendant is questioned by this sort of thing, that he has a right to be advised that he does not have to answer statements, in view of a police interrogation. I think this is awfully important in this case, because here these statements are intended to be used against him at trial. That is what the State is trying to introduce at this time. This is doubled by the fact that the defense was not even informed of such statements.
THE COURT: Were you given Officer Harrell’s name?
MR. CARLSON: That is correct, Judge. THE COURT: You were given her name?
MR. CARLSON: That is correct, Judge. THE COURT: What do you have to say about it, Mr. Springer?
MR. SPRINGER: First of all, Judge, my understanding of the statement part of the discovery rule is that they are not talking about res gestae statements and what I mean by res gestae in this case is, these are statements that occurred at the time that the charge was—
THE COURT: You are responding to the hearsay objection. I am not concerned about that.
MR. SPRINGER: All right; but Miranda?
THE COURT: Yes.
MR. SPRINGER: Miranda, I can cite some cases on. Brown v. State, which is reported at 222 So.2d 793 [Fla.App.] 1969, and Rosher v. State, 319 So.2d 150 [Fla. App.] 1975.
I will show these to the Court. Where testimony is not a part of in-custody, custodial interrogation, and where they are spontaneous, that statements which are not in response to in-custody interrogation Miranda is not required to be read and the Miranda case itself talked about in-custody interrogation.
We do not have an in-custody and we do not have interrogation. All we have is somebody just asking some questions that she said she did not consider this man a suspect in a crime at that point.
MR. CARLSON: Judge, I think in view of the fact that these statements were not on his Answer to Discovery, I would like a few minutes to research this law, myself, and give some counter-evidence. THE COURT: Did you take her deposition?
MR. CARLSON: No, sir, I did not personally.
THE COURT: Did somebody in your office take her deposition?
MR. CARLSON: Were you deposed by my office?
THE WITNESS: No, I was not.
THE COURT: You did have her name? MR. CARLSON: It was on the Answer to Discovery, Judge; but these oral statements are pretty important and I feel that we can respond to this along this line of argument.
I need time to get the cases, together. Had Mr. Brey said, “Yes, there is a stolen car in the garage and I stole it,” then he would have certainly been arrested at that time; but there was an investigation being made. There was also an investigation being made on the disturbance, itself.
THE COURT: Your objection before the Court will be overruled.

Defense counsel was then allowed to proffer a cross examination of Officer Harrell in an attempt to establish a possible Miranda violation. At the conclusion of the proffer, defense counsel renewed his request to have the “res gestae” statements excluded for lack of compliance with the rules of discovery and noted that, at the very least, the court should make “some sort of inquiry as to what the prosecution was about when this was accomplished.” The court denied the objection and the officer was allowed to testify.

Under the Florida Rules of Criminal Procedure, the state is required to disclose all known oral or written statements along with the identity of any persons witnessing such statement. Fla.R.Crim.P. 3.220 (a)(l)(iii). Compliance with the rules requires more than the mere inclusion of such a person’s name in a list of witnesses who may have information about the crime. Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA 1978); Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977).

Upon objection by the defendant, the burden is on the state to initially demonstrate that previously undisclosed evidence can be admitted without prejudicing the fair trial rights of the defendant. La-vigne v. State, supra. In Cumbie v. State, 345 So.2d 1061 (Fla.1977) the Supreme Court stated:

In Richardson we held that a violation of the Rules of Criminal Procedure by the state would require an appellate court to reverse a conviction unless the trial court made an inquiry into all the circumstances surrounding the breach, with the state having the burden of showing to the trial court that there was no prejudice to the defendant. Id. at 1062.

In Richardson v. State, 246 So.2d 771 (Fla.1971) the Supreme Court held that the trial court must, before allowing the admission of such evidence, conduct a hearing and specifically determine:

.1. whether the state’s violation of the criminal rules of discovery was willful or inadvertent;
2. whether the violation was trivial or substantial;
3. whether the violation has prejudiced the ability of the defendant to properly prepare for trial.

Although the trial court has broad discretion in determining whether the evidence should be admitted, such discretion cannot be properly exercised in the absence of an adequate inquiry into the surrounding circumstances of the discovery violation. In addition to the three items set out above such an inquiry should also determine whether there are reasonable means available to avoid prejudice to the defendant and what sanctions, if any, including the possible exclusion of the evidence, should be imposed as a result of the violation. Cooper v. State, 377 So.2d 1153 (Fla.1979); Wilcox v. State, 367 So.2d 1020 (Fla.1979); Cumbie v. State, supra.

In the case at hand we do not believe a proper inquiry was conducted by the trial court. Richardson v. State, supra. The inquiry here focused on the legal admissibility of the evidence and the fact that the name of the police officer had been contained in the state’s list of witnesses. Such listing did not satisfy the requirements of the rules. Lavigne v. State, supra. What inquiry there was indicated that the state intentionally failed to disclose the statements in the mistaken belief that there was a “res gestae” exception, and there was no inquiry as to the prejudicial effect of the violation on defendant’s preparation for trial.

In our view the state should be required to demonstrate to the trial court, considering the factors outlined above, that the evidence can be admitted without substantial adverse effects on the rights of the defendant. In some cases, for instance, where the trial court finds the violation inadvertent and trivial it may be easy to demonstrate a lack of prejudice. In other cases, where the violation is willful and substantial, a contrary result will probably be indicated. The facts will control the results, but a fair result cannot be reached if there is no inquiry into the circumstances of the violation.

Our review of the record reveals the existence of overwhelming evidence against the defendant. Not only did the same neighbors who heard defendant’s incriminating statements testify about such statements and about his possession of the stolen vehicle, but as noted, supra, the evidence showed that the vehicle was found in defendant’s garage. In the face of such evidence we might well conclude that the receipt of the police officer’s testimony constituted harmless error. However, in Cumbie v. State, supra, the Supreme Court has cautioned against this practice:

It is clear that the trial court’s investigation of the question of prejudice was not the full inquiry Richardson requires. No appellate court can be certain that errors of this type are harmless. A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as Richardson indicates. Id. at 1062.

Hence, the Supreme Court has in effect held that the harmless error rule cannot be applied to Richardson errors and that such errors are reversible as a matter of law. See Lavigne v. State, supra, especially the special concurrence of Boyer, J.

Accordingly, it is our conclusion that the trial court committed reversible error in failing to make the inquiry and findings required by Richardson v. State, supra. For that reason, the judgment and sentence are hereby reversed and this cause is remanded for a new trial.

DOWNEY, C. J., and MOORE, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    In re the ESTATE of Daniel J. DEZSO, Deceased.
    No. 79-357.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    N. Richard Schopp, Port St. Lucie, for appellant Daniel J. Dezso, Personal Representative of the Estate of Daniel J. Dezso, Sr., Deceased.
    Charles E. Garris, of Smith, O’Haire, Thatcher & Quinn, Vero Beach, for appellee Angeline P. Dezso.
   GLICKSTEIN, Judge.

This is a timely appeal from an order of the probate court, extending the time in which a claimant could file an action based upon her statement of claim. We reverse.

Appellee is the widow of the decedent, whom she married on June 13, 1970. On May 19, 1978, the decedent executed a will, leaving his estate to his son and naming him as personal representative. At the time of decedent’s death on June 14, 1978, he was domiciled in Florida. An inventory filed August 3, 1978 indicated that the estate assets consisted of personal property valued at $21,469.63.

On October 17, 1978, appellee, a resident of Connecticut, filed a statement of claim against the estate for $35,000 based on her having tendered all of her income and social security benefits to the decedent from the date of their marriage, together with savings of $7,500. Her attorney-in-fact in Connecticut executed said claim and a surviving spouse’s election to take her statutory share of the estate. Appellant filed an objection to appellee’s claim on October 26, 1978; and on December 26, 1978, an Indian River County law firm filed a petition in appellee’s behalf to extend time for the filing of an action based on the statement of claim. An order was entered on January 19, 1978 by the probate court extending the time thirty days from the date of the order.

Appellee’s reasons for seeking the extension of time in her petition were the following:

2. That Petitioner employed attorneys in St. Lucie County for the purpose of pursing said claim. Said attorneys, due to illness, were not able to handle the estate’s claim. (Emphasis added)
3. The nature and extent of the claim being such that the Petitioner was unable to trace certain assets in the possession of the decedent necessary to proceed to bring an action against the decedent’s estate.
4. That the claimant is not a resident of the State of Florida and as such is not familiar with the nature and extent of the decedent’s estate nor the provisions of the Florida Probate Code.

The governing statute is Section 733.-705(3), Florida Statutes (1977), which states in part:

(3) The claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim. For good cause, the court may extend the time for filing an objection to any claim or the time for serving the objection, and may likewise extend the time for filing an action or proceeding after objection is filed. The extension of time shall be granted only after notice. No action or proceeding shall be brought against the personal representative after the time limited above. . . . (Emphasis added)

The statute’s nature and the test for establishing good cause are discussed in In re: Goldman’s Estate, 79 So.2d 846, 847 (Fla. 1955):

It is held in this jurisdiction that since the statute in question expressly authorizes the county judge, upon good cause shown, to extend the time for bringing suit, the statute is not a statute of non-claim, as is section 733.16, Florida Statutes, F.S.A., but is a statute wherein “the stated time limits operate as rules of judicial procedure.” In re Jeffries’ Estate, 136 Fla. 410, 181 So.2d 833, 838. Therefore, its provisions limiting the time for filing suit may be relaxed, within the sound discretion of the court, so as to permit the filing of suit even when the motion for extension of time is not made until after the expiration of the limitation period. In re Jeffries’ Estate, supra; Atlantic National Bank of Jacksonville v. Kirkwood, 152 Fla. 59, 10 So.2d 743. But, as is clear from the statute and the cited decisions, a cause sufficient to authorize an extension of time for filing suit must be a “good cause,” by which it is meant that “the adjudication is to be governed by a given standard of judicial action,” In re Jeffries’ Estate, supra, contemplating “a substantial reason, one that affords a legal excuse,” or a “cause moving the court to its conclusion, not arbitrary or contrary to all the evidence,” and not mere “ignorance of law, hardship on petitioner, and reliance on [another’s] advice.”

The unsworn petition is unaccompanied by affidavits or other evidence in the record which would provide substance to paragraph 2. Not only are the St. Lucie County attorneys unidentified, there is nothing to establish who was ill, to what extent, or for what period. The term “attorneys,” not “attorney,” is used, but there is no explanation why one of the attorneys could not have performed. The bare-boned statement was simply insufficient for the probate court to find good cause existed “due to illness.”

As for paragraph 3, appellee’s alleged inability to “trace certain assets in the possession of the decedent necessary to proceed” is not any more of a legal excuse than was the delay in filing suit because of the absence of inventory in Exchange National Bank of Winter Haven v. Field, 338 So.2d 889 (Fla.2d DCA 1976), cert. den. 346 So.2d 1248 (Fla.1977). The lack of familiarity with the Florida Probate Code alleged in paragraph 4 is precisely “ignorance of the law,” which was expressly rejected in In re Goldman’s Estate, supra.

The order of the probate court is reversed.

REVERSED.

LETTS and BERANEK, JJ., concur.


text:
    Madeline BAGNASCO, Appellant, v. Josephine SMITH et al., Appellees.
    No. 78-2792.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Harvie Duval and Leo Greenfield of Law Offices of Leo Greenfield, P.A., North Miami, for appellant.
    Arthur Morburger of Weinstein & Bavly, P.A., Miami, for appellees.
   ANSTEAD, Judge.

This appeal by the appellant is from a final summary judgment in favor of the defendant-appellees in a personal injury action.

The appellees filed a motion for summary judgment predicated on the affirmative defense of release asserted by virtue of the appellant’s execution of a general release when she settled her claims against other tortfeasors. That release, in addition to releasing the named tortfeasors, purported to release all other persons who might be liable to appellant. In reply to the affirmative defense, the appellant claimed that such release did not affect her claim against the appellees. Appellant filed an affidavit by her counsel which related in essence that the portion of the release which discharged all other persons had been included therein by mutual mistake and that the appellant was entitled to a reformation of the release to exclude such language. The appellant also filed a separate lawsuit for reformation against the tortfeasors involved in the prior settlement.

In Ayr v. Chance, 372 So.2d 1000 (Fla. 4th DCA 1979) this court reversed a trial court’s entry of summary judgment under very similar circumstances. We believe that the same result is mandated herein. Although the reply of the appellant was not as well drawn as it might have been in seeking to avoid the effect of the release on the grounds of mutual mistake, there was no challenge to the technical sufficiency of the reply on that ground; and the subsequent filing of the affidavit by appellant’s counsel clearly presented the claim of mutual mistake. In addition, the trial court had entered an order after the previous settlement dismissing the settling tortfeasors from the suit but specifically providing that the appellant’s claim against the appellees would continue despite the settlement. Because there was an issue as to the validity of the release as to appellees, we believe the trial court erred in entering summary judgment.

Accordingly, the summary final judgment is hereby reversed with directions for further proceedings consistent herewith.

DOWNEY, C. J., and MOORE, J., concur.

      . Also see the recent Supreme Court decision of Hurt v. Leatherby Insurance Co., 380 So.2d 432 (1980).


text:
    Linda MAHAN and Larry Mahan, Appellants, v. PARLIAMENT INSURANCE COMPANY, and Joseph C. Rivello, d/b/a Rickey D’s Lounge, Appellees.
    No. 79-658.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied April 25, 1980.
    Richard A. Kupfer of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.
    Jesse W. Miller, North Miami, for appel-lees.
   GLICKSTEIN, Judge.

This is a timely appeal from a final judgment following a jury trial and order denying new trial. We affirm.

Appellants, Linda Mahan and Larry Ma-han, her husband, brought an action based on personal injuries sustained by Linda on June 24,1977, when a fight erupted at a bar known as “Ricky D’s Lounge” in West Palm Beach, Florida, and spilled over into an area where she was seated with her husband. In the fracas the participants fell onto the table where the Mahans were situated, and the table shifted, pinning the injured appellant against the booth.

Appellants alleged in their complaint, in essence, that the club owner breached his duty to provide a safe place for his customers, including appellants, by allowing persons of known dangerous or vicious propensities to frequent the bar and to remain there after it became obvious that a fight was about to erupt. They also alleged that the owner failed to break up and control the fight, failed to warn appellants of the danger, failed to provide adequate protection and security and neglected to anchor the table where the incident occurred properly to the floor.

Appellants raise one point on appeal: WHETHER THE LOWER COURT ERRED IN DENYING APPELLANTS’ TIMELY MOTION FOR NEW TRIAL WHICH DEMONSTRATED NEWLY DISCOVERED EVIDENCE INDICATING THAT PERJURY HAD BEEN COMMITTED BY A CRUCIAL WITNESS FOR APPELLEES CONCERNING TESTIMONY WHICH WAS DEVASTATING TO APPELLANTS’ CASE, THUS DEPRIVING APPELLANTS OF THEIR RIGHT TO A FAIR TRIAL?

If, in fact, perjury was committed by the witness in question, a new trial would be ordered forthwith without further discussion. However, the trial court’s decision denying appellant’s motion for new trial can be understood by an examination of the record.

Perjury in official proceedings is defined in Section 837.02, Florida Statutes (1977):

(1) Whoever makes a false statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter shall be guilty of a felony of the third degree, punishable as provided in s. § 775.082, s. § 775.083, or s. § 775.084.
(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his statement was not material is not a defense.

The testimony that is alleged to be perjured is that of Dawn Karen Fogleman, appellee-club-owner’s night manager and bartender. There is no evidence that the witness had any financial interest in the business. Her testimony in question is as follows:

BY MR. MILLER: Q. Okay. All right, Now, did you ever [sic] any problems in the bar prior to this incident in which the Mahans were involved?
A. No.
MR. MASSA: Objection; move to strike. It’s irrelevant, Your Honor.
MR. MILLER: I don’t think it is.
THE COURT: In which the Mahans were involved?
MR. MILLER: I'm talking about — I'll rephrase the question. I’m talking about— prior to the night of the Mahans incident—
A. No.
Q. Wait ’til I finish the question. Did you ever have any disturbances in the bar?
THE COURT: That she knows, of her own personal knowledge?
MR. MILLER: Right.
THE WITNESS: No.
THE COURT: Objection overruled.
BY MR. MILLER: Now, you were the manager, were you not?
A. Yes.
Q. Now, did you have some nights off or something?
A. I don’t think at that time. I think I was working seven straight days.
Q. Well, if there had been some disturbance in the bar when you weren’t physically present for some reason or another as the manager, would that have been called to your attention?
A. I would have been told about it. Q. And did anyone ever report any disturbances to you?
A. No.

In fact, the witness apparently had knowledge of a prior disturbance in the bar; namely, a purse-snatching incident in May 1977, which is described in the affidavit of Elizabeth Theresa Owen filed in support of appellant’s motion for new trial. Appellants did not learn of the prior disturbance because they failed to ask Elizabeth Owen at her deposition whether there had been any prior fights or other kinds of disturbances in the bar. The only inquiry of Dawn Fogleman at her deposition was as follows:

Q. Had you had any other problems in Ricky D’s Lounge prior to this incident— A. No.
Q. —similar to that night?
A. No.
Q. Any kind of fights starting?
A. No. It was a nice bar.
Q. Okay. So, this was the only incident that you can recall?
A. Right.

There are three matters that concern us in considering appellants’ right to a new trial. The first is the principle recited in Vining v. American Bakeries Co., 121 Fla. 116, 119-120, 163 So. 396, 397-398 (1935).

The general rule is that courts should look with disfavor upon applications for new trial upon the ground of newly discovered evidence, because to look with favor upon such proceedings would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the verdict, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial, (citation omitted).

The second is a corollary of the first; namely, the availability of the evidence had counsel’s pre-trial inquiry of the witnesses he deposed been complete. See Ganey v. Goodings Million Dollar Midway, Inc., 360 So.2d 62 (Fla. 1st DCA 1978).

Finally, we are convinced, as a matter of fairness, that the record supports the trial court’s conclusion that Dawn Fogle-man did not knowingly give false testimony. Prior to trial the appellants never asked Dawn Fogleman whether such a disturbance occurred at the bar prior to June 24, 1977. She took the stand at trial and became a participant in a series of questions interspersed with remarks by the trial court and counsel for both parties. Understandably, this may have been confusing to her. Given all of the foregoing circumstances, the trial court justifiably could conclude that the witness had not made a perjured statement.

There are two primary cases on which appellants rely, and if the facts here were, in any manner, similar to the facts in those cases, the trial court would have undoubtedly ordered a new trial. In Ogburn v. Mur ray, 86 So.2d 796 (Fla.1956), one of the plaintiffs testified at trial that he was earning $125 to $150 per week from Sawyer Motor Company before his accident and only $68 and then $60 per week for Abernathy Paint and Body Works after the accident. The jury awarded $8,000 to this plaintiff. After the trial defendants offered affidavits of each employer, which established the plaintiff was earning $56.69 per week prior to the accident and $80 per week afterward. In granting defendants a new trial on the issue of damages, the supreme court concluded that the closing argument of plaintiff’s counsel that his client had already lost $6500 in wages made it plain that the jury verdict would not have been the same had the true facts about his wages been presented.

Similarly, in Alston v. Shiver, 105 So.2d 785 (Fla.1958), the court ordered a new trial where at trial the plaintiff testified she could not work and defendant produced affidavits in support of a motion for new trial which established that the plaintiff had been employed for several weeks in a canning plant and worked as a laborer clearing stumps, some of which weighed one hundred pounds. The court verbalized its abhorrence and the public’s abhorrence to false testimony and to a party’s prevailing by knowingly giving or using false testimony.

The facts of this case are somewhat similar to those in Drew v. Chambers, 133 So.2d 589 (Fla. 1st DCA 1961), where the court affirmed the trial court’s denial of plaintiff’s motion for new trial. The motion had been based on alleged perjury as revealed by newly discovered evidence. The court held, inter alia, there was no proof that defendant’s testimony was knowingly false and:

. All the evidence on which the appellant now relies to show perjury was available to him prior to the trial of this cause. All such evidence could have been employed during the trial to discredit defendant’s testimony if plaintiff had seen fit to use it. No just cause or excuse is shown by this record for plaintiff’s failure to discover this evidence and utilize it at the proper time. Id. at 591.

See also, Corporación Peruana de Aeropuer-tos y Aviación Comercial v. Boy, 180 So.2d 503, 506 (Fla. 2d DCA 1965), as amended on denial of rehearings (1965).

Based on the totality of the circumstances, we affirm.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur.

      . In Van Note v. State, 366 So.2d 78, 80 (Fla. 4th DCA 1978, rehearing denied 1979), we reversed a conviction and remanded for new trial principally because
      “It is very possible perjury and subornation of perjury were committed and that cannot go uncorrected.”

      . “2. I was an employee, working as a cocktail waitress, at Ricky D’s Lounge from April 8, 1977 to August 25, 1977. During that period of time, I worked on a 9:00 p. m. to 3:00 a. m. shift approximately five days a week. Practically every day that I worked at Ricky D’s Lounge, Dawn Fogelman worked with me serving as the Night Manager.
      “3. I was a witness in the recent trial of Mahan v. Ricky Dean, Inc. and testified on Wednesday, January 31, 1979.
      “4. Although neither attorney asked me, I was aware of fights that had occurred and trouble that had occurred in Ricky D’s Lounge prior to the incident of June 24, 1977, involving the Mahans. More specifically, I recall an incident in May of 1977 in which an individual attempted to steal my purse, the purse of Dawn Fogelman, [sic] and the purse of Sally Jones, inside Ricky D’s Lounge. At that time, the doorman, Willis Natoli, attempted to restrain the individual and had to obtain assistance from other patrons of the bar to restrain the individual. The police finally arrived and because of the amount of money involved, Dawn Fogelman [sic] was requested to travel to the' West Palm Beach Police Station to give her statement. 1 traveled with her to the West Palm Beach Police Station.
      “5. I have read over the transcript of the statement given by Dawn Fogelman [sic] under questioning by Attorney Miller at the Mahan trial (a copy of which is attached) and her statement that there were no disturbances or problems in this bar prior to the incident involving the Mahans is incorrect.”
      With respect to that portion of the affidavit that states in paragraph 4: “I was aware of fights that had occurred and trouble that had occurred in Ricky D’s Lounge prior to the incident of June 24, 1977 . . .,” there is nothing in the record by affidavit or otherwise which specifically alleges any prior incident other than the purse snatching in May 1977.


author: PER CURIAM.

text:
    William Frank CADA, Appellant, v. STATE of Florida, Appellee.
    No. 79-699.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

William Frank Cada appeals his placement on probation after a jury’s verdict of guilty of battery on a law enforcement officer. While we find no merit in appellant’s first point, we agree that the trial court erred in imposing a requirement that appellant pay restitution in an “amount, mode and manner to be determined by the probation officer.”

It is improper for the trial judge to delegate to the probation supervisor the authority to determine the amount of restitution appellant must pay. Fresneda v. State, 347 So.2d 1021 (Fla.1977); Cothron v. State, 377 So.2d 255 (Fla. 2d DCA 1979); McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert, denied 374 So.2d 99 (Fla.1979). Appellant is entitled to a hearing before the trial court to determine the amount of restitution.

Accordingly, this case is remanded with instructions to hold a hearing as to the amount of restitution appellant is to pay. The order placing appellant on probation is affirmed in all other respects.

ANSTEAD and HURLEY, JJ., and RIVKIND, LEONARD, Associate Judge, concur.

      . Sections 784.03(1) and 784.07(2)(b), Florida Statutes (1977).


text:
    S. F. KUVIN, M. D., and Gordon W. Hayslip, M. D., Appellants, v. Fred A. MIERZWAK and Maude E. Mierzwak, his wife, Appellees, T. J. SCHNEIDER, M. D., Appellant, v. Fred A. MIERZWAK and Maude E. Mierzwak, his wife, S. F. Kuvin, M. D. and Gordon W. Hayslip, M. D., Appellees.
    Nos. 79-979, 79-995.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Jones, Paine & Foster, P. A.; Roy R. Watson of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellants Kuvin & Hayslip.
    John W. Mauro and Kevin L. O’Brien of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Lauderdale, for appellant Schneider.
    Stanley M. Rosenblatt, P. A., Sharon L. Wolfe of Greene & Cooper, P. A., Miami, for appellees Mierzwak.
   PER CURIAM.

AFFIRMED. See Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979).

LETTS, MOORE and HERSEY, JJ., concur.


text:
    Leo Lee ARENA, Appellant, v. STATE of Florida, Appellee.
    No. 79-1248.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with and convicted of burglary of a dwelling. The trial court adjudicated appellant guilty of burglary and sentenced him to fifteen years. After eight years in prison he was to be placed on probation for five years.

Appellant contends that the sentence imposed is excessive because he was adjudicated guilty of burglary, a third degree felony which carries a maximum sentence of five years. On the other hand, the state contends the case is controlled by Ham brick v. State, 80 Fla. 672, 86 So. 623 (Fla.1920), and Russo v. State, 340 So.2d 1273 (Fla. 4th DCA 1978). In Russo, this court, quoting from Hambrick, supra, said:

When the record in a criminal case shows fully the crime for which the prisoner was indicted and all the proceedings thereon, through trial and verdict up to conviction and sentence, the failure in the sentence to name the crime for which the prisoner is sentenced may be supplied by reference to the rest of the record. 340 So.2d at 1273.

The rule is clear that the oversight in failing to properly name the crime in the sentence can be supplied by reference to the record. Resort to the record in this case demonstrates that appellant was charged and convicted of burglary of a dwelling, a second degree felony carrying a maximum penalty of fifteen years. Thus, the sentence in question is within the limits provided by statute.

We could simply affirm this case without further comment; however, as a matter of housekeeping and to clarify the record we deem it expedient to remand the case to the trial court to modify the judgment and sentence to show that appellant was adjudicated guilty of burglary of a dwelling and, as so modified, the judgment and sentence are affirmed. It shall not be necessary for appellant to be present for such modification of the judgment.

AFFIRMED AS MODIFIED AND REMANDED with directions.

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


text:
    Frank A. FINLASON, Appellant, v. Lisa A. FINLASON, Appellee.
    No. 79-1564.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied April 25, 1980.
    Martin H. Colin, Lake Worth, and Larry Klein, West Palm Beach, for appellant.
    Philip G. Butler, Jr. of Foley, Colton & Butler, P. A., West Palm Beach, for appel-lee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197, (Fla.1980).

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


text:
    Robert Allen McCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1685.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Richard L. Jorandby, Public Defender, and Cathleen H. Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. On Authority of King v. State, 373 So.2d 78 (Fla. 3rd DCA 1979).

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Marvin Franklin GOOD, Petitioner, v. Richard WILLE, as Sheriff of Palm Beach County, Florida, Respondent.
    No. 80-364.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied May 7, 1980.

      Howard L. Greitzer of Lyons & Sanders, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Petitioner seeks to review by habeas corpus and petition to review an order setting bail pending trial on the basis that the amount thereof is so excessive as to amount to a denial of bail. Marvin Good is charged with trafficking in cannabis in excess of one hundred pounds but less than two thousand pounds, and possession of methaqua-lone with intent to sell. Bond was set at $500,000.00 by the trial court.

The trial court concluded from the probable cause affidavit and the testimony of Deputy Sheriff Gerard Nault that the probability of conviction was great. The deputy testified that when petitioner was arrested at 4:30 a. m. on January 26, 1980, the suspect was concealing himself in the women’s-bathroom at Lantana Airport. Petitioner produced his pilot’s license when asked for identification. A .38 automatic pistol was also found in the bathroom. A yellow clay-type dirt uncommon to Florida soil was on petitioner’s trouser leg and boots. This same clay-type dirt was also found on the right wing of the airplane the deputy had just seen land at the airport in which approximately 660 pounds of marijuana and fifty pounds of quaaludes had been found. Because petitioner has not supplied us with the probable cause affidavit, we accept as correct the trial court’s finding that conviction was probable. Sanders v. State, 184 So.2d 686 (Fla. 1st DCA 1966).

Petitioner took the stand at the bond hearing and testified that he resides in a condominium apartment which he owns in Miami, Florida, and has resided in Dade County, Florida, for the past eleven years. Petitioner further testified that he is self-employed in a part-time one-man rug business and has flown for two corporations, has $7,000 in a bank account and cannot pay for a $500,000 bond, has no prior felony convictions and has always appeared when charged with a traffic violation, enjoys good mental health, owns a valid passport which has no restrictions and was last out of the country two months prior to his testimony, is divorced, and has a son who stays with petitioner’s parents in Kentucky.

Our function is to weigh the soundness of the trial court’s discretion and determine if petitioner has produced sufficient evidence to overcome the presumption of correctness of the trial court’s order. State ex rel. Smith v. Untreiner, 246 So.2d 158 (Fla. 1st DCA 1971), cert. den. 250 So.2d 643 (Fla.1971). We are of the opinion that he has overcome this presumption.

Article I, Section 14 of the Florida Constitution provides:

Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.

Petitioner is not charged with a capital offense or offense punishable by life imprisonment. He faces a maximum term of thirty years with a mandatory minimum of three years and a $25,000 fine on the first charge and a possible five-year sentence on the second. Accordingly, he is entitled to bail.

Petitioner is also entitled to reasonable bail which brings into focus the financial condition of the defendant. Depending upon the financial circumstances of the defendant, excessive bail is tantamount to no bail. State ex rel. Bardina v. Sandstrom, 321 So.2d 630 (Fla. 3d DCA 1975).

In addition to the defendant’s financial circumstances, there are numerous criteria to be considered in setting bail and each case is dependent upon its individual facts. Factors to be considered in determining the amount of bail include the nature of the offense and the penalty for it, the character and strength of the evidence or probability of guilt, the probability of the accused appearing at trial, his accessibility to means of flight, his family ties and employment, the length and stability of his residence in the community, the prior record of the accused in responding to process, whether the accused was a fugitive from justice when arrested, whether the accused is under bond for appearance at trial in other cases, his respect for the law, the accused’s character and reputation, and the state of his health. Stansel v. State, 297 So.2d 63, 66 (Fla. 2d DCA 1974); State ex rel. Smith v. Untreiner, supra at 160.

Although it is high, there is nothing improper, per se, about a $500,000 bond, and there is precedent for it in drug cases. In Mecom v. United States, 434 U.S. 1340, 98 S.Ct. 19, 54 L.Ed.2d 49 (1977), the defendant was convicted of conspiracy to possess marijuana with intent to distribute and had been sentenced to five years imprisonment followed by a special parole term of another five years. Mr. Justice Powell as Circuit Justice denied application for reduction of the $750,000 bail. The applicant in that case was involved in a large scale smuggling enterprise importing marijuana into Texas from Mexico in loads of 200 to 700 pounds, his wife and co-indictee were fugitives, and he paid $100,000 in an unsuccessful attempt to have one of his associates murdered.

In Stansel v. State, supra, a bond of $500,000 was found not to be excessive or unreasonably high following indictment of defendant by the Statewide Grand Jury for conspiracy to possess marijuana. The evidence showed that in 1972 $550,000 had been transferred into a Cayman Islands bank account over which defendant had control; that when arrested, he had $25,000 in cash on his person; that in the thirty days prior to hearing, he had visited twelve foreign countries; that he spent six months a year away from his home in Tarpon Springs; that his main business interests were outside the United States; that he owned one boat worth $25,000 and had owned boats worth $350,000 in the year last past; that he had one prior drug arrest but no conviction; and that the United States Government had previously filed a lien against him for back' taxes of $250,000.

The record reflects that although the bond was high, the trial court felt that the bail was appropriate to assure the defendant’s presence at trial. It is our conclusion that the facts in this case do not approach the degree of financial acumen or criminal activity that existed in the two foregoing cases. We think a smaller sum should have been required of petitioner.

Smaller sums have been set in similar cases. In United States v. Perrone, 413 F.Supp. 861 (S.D.Fla.1976), bond for two defendants who were dangerous to the community was set at $300,000. One defendant was under investigation for murder and had engaged in extortion by beating as well as using 15 and 16-year-old girls for prostitution. The other was a Turkish citizen, a previously convicted felon and an accessory before the fact to murder. Both defendants had been found guilty of conspiring to distribute large quantities of cocaine. In addition to the bail, the court imposed severe conditions of release, including surrender of passports, restriction on the mode and place of travel, daily reporting to the probation office and prohibition against possession of firearms. Bail of $100,000 was held not to be excessive in State ex rel. Smith v. Untreiner, supra, for possession of marijuana, conspiracy to commit burglary and possession of burglary tools.

$500,000 was held to be excessive in Rodriguez v. State, 305 So.2d 305 (Fla. 2d DCA 1974), as was $250,000 in Matera v. Buchanan, 192 So.2d 18 (Fla. 3d DCA 1966). Neither case recites the charge against the defendant, but in both cases the appellate courts remanded proceedings to the trial court or granted the petition with directions that a new hearing be held on the reasonableness of the bail previously set. We believe such procedure to be applicable here, particularly since we have not been advised as to how much of the $500,000 is attributable to each of the respective charges.

Under the particular facts we find the amount of $500,000 bail is excessive. We therefore grant this petition for writ of habeas corpus and make it returnable before the trial judge so that a new determination of reasonable bail in a reduced amount may be made. Such determination shall be held forthwith, in accordance with the criteria recited herein. The parties may be given an opportunity to present additional evidence should the trial court deem it necessary.

IT IS SO ORDERED.

HERSEY and HURLEY, JJ., concur.


author: PER CURIAM. • BOOTH, Judge,

text:
    Buford SLOAN, Appellant, v. CONCRETE SCIENCES and Liberty Mutual Insurance Company, Appellees.
    No. QQ-393.
    District Court of Appeal of Florida, First District.
    April 9, 1980.

      Albert E. Harum of Harum & Harum, Coral Gables, for appellant.
    Frank E. Maloney, Jr. for Anthony J. Beisler, P. A., Fort Lauderdale, for appel-lees.
   PER CURIAM. •

The deputy commissioner found that the claimant suffered no permanent disability from an inner ear infection which resulted from cement poisoning. In doing so, however, he failed to rule on an issue properly before him, to wit: whether the appellees were responsible for Dr. Fagan’s bill for medical treatment. Mel web Signs v. Dills, IRC Order 2-3771 (April 16, 1979). The appellees are hereby ordered to pay Dr. Fagan’s bill in light of uncontroverted evidence that Dr. Sloan, the initially authorized physician, referred the claimant to Dr. Fagan who continued to treat the claimant for inner ear poisoning. Coral Magnetics Company v. Allen, 8 FCR 73 (1973). We find no support in the record for the appel-lees’ position that Dr. Fagan was deauthor-ized.

As modified by this opinion, the order is otherwise

AFFIRMED.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


author: McCORD, Judge.

text:
    Willie James BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. SS-33.
    District Court of Appeal of Florida, First District.
    April 9, 1980.
    Rehearing Denied May 2, 1980.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Barnett pleaded nolo contendere to a charge of obtaining a controlled substance by fraud, reserving his right to appeal and to urge that the trial court erroneously denied his motion to dismiss, which was based upon Barnett’s assertion that a retrial would violate double jeopardy. We affirm.

Barnett’s initial trial was terminated, at the state’s request, by a mistrial following an outburst made by Barnett in the presence of the jury. Barnett’s outburst related to exculpatory matters allegedly told to a witness by a third party. In his order granting the mistrial, the trial court found that the remarks were no prejudicial to the state’s case that a fair trial would be impossible and a curative instruction would be ineffective. In his motion to dismiss, Barnett contended that there was no manifest necessity to justify the granting of the mistrial over his objection.

In our view, the motion to dismiss was properly denied. Barnett’s remarks were improper and prejudicial. The remarks attributed to the third party, to the effect that Barnett had not committed the offense, were clearly inadmissible hearsay, Baker v. State, 336 So.2d 364, 367 at fn. 2 (Fla.1976), which the state could not, within the rules of evidence or procedure, rebut. Although the defendant has a valued right to have his trial completed by a particular tribunal, such right is subordinated to the public’s interest in fair trials designed to end in just judgment; thus, the double jeopardy protection does not preclude a second trial when the initial trial is discontinued under circumstances manifesting a necessity for so doing, and when the failure to discontinue would defeat the ends of justice. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). As recognized in State ex reí. Dato v. Himes, 134 Fla. 675,184 So. 244, 247 (1938), one circumstance for entering a mistrial with the right preserved for a second trial is “where the prisoner by his own misconduct places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the state . . Under the circumstances of this case, we find that the trial court properly exercised his discretion in determining that there was a manifest necessity to declare a mistrial. Accordingly, the judgment and sentence are affirmed.

BOOTH and SHAW, JJ., concur.


author: SHARP, Judge.

text:
    In re the ADOPTION of Kathryn Ann STINEBAKER, a minor, Don C. and Joanne A. Stinebaker, Petitioners.
    No. 80-7.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      Harold L. Downing, of Nichols & Associates, P. A., Orlando, for petitioners.
    R. Wm. Lyng, III, Kissimmee, for respondent, Mary Deborah Stinebaker Isaac.
   SHARP, Judge.

The petitioners seek review of an order dismissing their petition to adopt their granddaughter by means of filing a petition for common law certiorari. The trial court’s order granted the respondent’s motion to dismiss the amended petition for adoption, but did not actually dismiss it, and allowed the petitioners one week to amend the petition.

We deny the petition because the petitioners fail to show an essential departure from the law and irreparable harm or that an appeal of a final order will not give complete and adequate relief. Gordons Jewelry Co. v. Feldman, 351 So.2d 1117 (Fla. 4th DCA 1977). We further decline to treat the petition for certiorari as an appeal because the order is not final. Hancock v. Piper, 186 So.2d 489 (Fla.1966); Epley v. Washington County, 358 So.2d 592 (Fla. 1st DCA 1978).

The petitioners shall not be prejudiced in any way to raise the merits of their case by appealing from a final order.

PETITION DENIED.

CROSS and ORFINGER, JJ., concur.


author: ORFINGER, Judge.

text:
    Roy PLATT, Appellant, v. Lillian PIETRAS et al., Appellees.
    No. 78-2684/T4-333.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      Ralph Geilich, of Williams & Geilich, Melbourne, for appellant.
    S. Lindsey Holland, Jr., of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellees.
   ORFINGER, Judge.

This was a class action brought by appel-lees to enjoin a continuing trespass over property owned by them, to require removal of a portion of a fence constructed by appellant and to assess damages. From a judgment for plaintiffs below, the defendant appeals. We affirm.

In 1950, appellant Platt became the owner of 1733 lots in a platted subdivision in Brevard County containing a total of 1840 lots. The remaining 107 lots were owned by the named plaintiffs and by other owners too numerous to name, so the action was prosecuted as a class action. Platt sold his 1733 lots in 1956, but later acquired a grazing lease thereon, and was the holder of such grazing lease when the present action was filed. The amended complaint alleged that Platt had constructed a fence which completely blocked the platted roads and streets, some of which had been in use though unpaved; that he blocked plaintiffs’ access to their lots and that he allowed his cattle to trespass thereon. Platt affirmatively defended by claiming a prescriptive right to graze cattle on plaintiff’s lots.

After a non-jury trial, the court found, as pertinent here, that the entire subdivision had been fenced by appellant and his predecessors in title and had been used for the grazing of cattle for more than twenty years; that appellant did not claim any title by adverse possession; that appellant has at no time ever claimed title to appellees’ lots or to the streets shown on the subdivision plat; and that appellees have always paid their taxes on their lots. He concluded from the evidence:

“(i) That the defendant Platt has gained no prescriptive right to the continued use of Plaintiffs’ lots; the use by the Defendant Platt for grazing purposes of Plaintiffs’ lots has been over the entirety of the lots and not through any delineated or definable way, and no prescriptive right can be so broadly obtained; that a prescriptive right for grazing purposes over the entirety of Plaintiffs’ lots would effectively preclude Plaintiffs from using said lots for agricultural or other purposes, and would amount to a nearly complete taking of Plaintiffs’ right to the use and enjoyment of their property;”

He then enjoined the continued trespass, required the removal of the fence from all places where it blocks platted streets leading to any of the appellees’ lots, enjoined the grazing on those lots or the platted streets, and awarded damages to the appel-lees in the total amount of $3,075.80.

Appellant contends that the trial court erred in holding that a prescriptive easement must be over a delineated or definable way and could not be over appellees’ entire property and further that the court erred in its determination of damages.

It is appellant’s position that the court was in error when it applied the “right-of-way” rule to a general easement, that only cases involving a claim of prescriptive right-of-way require proof of a definite route and termini and the actual length and width of the road, Downing v. Bird, 100 So.2d 57 (Fla.1958); Sunnybrook Groves, Inc. v. Hicks, 113 So.2d 239 (Fla.2d DCA 1959). True, those cases and others do impose those requirements on road right-of-way easements, but our agreement with appellant’s interpretation of these cases does not solve the problem here. Perhaps the trial court should not have applied the right-of-way doctrine to the type of easement claimed here since while rights-of-way are easements, all easements are not rights-of-way. Still, this possibly erroneous application of a rule does not make the ultimate decision wrong.

An easement is always distinct from the right to occupy and enjoy the land itself. It gives no title to the land on which it is imposed and confers no right to participate in the profits arising therefrom. 25 Am.Jur.2d, ,Easements, § 2. It is not an estate in land; it is an incorporeal hereditament, Downing v. Bird, supra. It is not a possessory interest or an interest which can become possessory. Thompson on Real Property, Vol. I, § 321. In this light, it becomes necessary to distinguish between prescription and adverse possession, which unfortunately have been referred to interchangeably in the past. Our Supreme Court pointed out the similarities and differences between the two concepts in Downing v. Bird, supra, and another good distinction was made in Florida Power Corporation v. McNeely, 125 So.2d 311 (Fla.2d DCA 1960) where the court said:

Because of the position assumed by the power corporation, we shall at this juncture discuss distinctions which exist between adverse possession and prescription. The right acquired under adverse possession is title and such acquisition necessitates possession. In acquisition of a prescriptive right, the essential element is use of the privilege without actual possession. One who acquires title by adverse possession must have exclusive possession, while as to a prescriptive right the use may be in common with the owner or the public. Title acquired through the avenue of adverse possession is a corporeal right, while a right acquired through the prescriptive process is an incorporeal hereditament in land. Downing v. Bird, Fla.1958,100 So.2d 57; and J. C. Vereen & Sons v. Houser, 1936, 123 Fla. 641, 167 So. 45.

The record in this case clearly indicates complete possession of the subject property by appellant. He fenced it and excluded everyone else from its use. As the final judgment points out, appellant’s claim would amount to a nearly complete taking. Complete dominion is inconsistent with a claim of easement. This is well stated by the Supreme Court of Arizona in Etz v. Mamerow, 72 Ariz. 228, 233 P.2d 442 (1951) as follows:

An allegation of exclusive possession is wholly inconsistent with the theory of establishing an easement. The right to possess, to use and to enjoy land upon which an easement is claimed remains in the owner of the fee except in so far as the exercise of such right is inconsistent with the purpose and character of the easement. . . . Thus it will be seen that an action to establish an easement does not involve possession or occupation of the land. It does not involve the enjoyment of the premises except to the extent of the use claimed under the easement. It does not disturb the legal title of the premises except as it is limited by the character of the easement. It does not involve dominion over the premises except that which is necessary for the enjoyment of the use.

Thus, while appellant calls his claim a prescriptive easement, in reality he claims adverse possession, but concededly has not perfected adverse possession because he has never returned appellees’ property for taxes nor paid the taxes thereon. Sec. 95.19, Fla. Stat. (1975).

The alleged easement claimed by appellant would be an easement in gross, i. e., an easement unconnected with nor for the benefit of any dominant estate. 25 Am.Jur.2d, Easements, § 12, p. 426. However, the grazing of cattle is more than an easement — it is a privilege plus a profit, the taking of forage — and generally characterized by the authorities as a profit a pren-dre.

The Florida courts have not previously been called on to determine if, through prescription one may acquire a profit a prendre in gross. This question was addressed by the Supreme Court of Utah and answered in the negative in Deseret Livestock Co. v. Sharp, 123 Utah 353, 259 P.2d 607 (1953) where it held, in a factual situation much like the one here:

The fundamental issue in this case is: In the absence of statute, may a person through prescription acquire a profit á prendre in gross? While we reserve a general answer to the foregoing question, we think that under the facts of this case, the authorities are correct in stating that prescription will not establish such a right. In Gateward’s Case, 6 Co.Rep. 59b, 77 Eng.Rep. 344, we find the initial announcement of the concept, the court reasoning that a profit allegedly acquired by custom without a dominant estate would create an interest in the land approximating a fee, the interest being transitory, altogether uncertain, in no way controlled by the needs of a dominant estate, and hence a right so unqualified cannot exist in the soil of a private landowner. [Citations omitted.] (at p. 610).

We concur with this holding and hold that under the facts here, a profit a prendre in gross could not be acquired by prescription because the appellant’s claim, while characterized as an easement, is really complete possession, dominion and use of the appellees’ property to the exclusion of the appellee and takes on the aspect of a fee. Since admittedly appellant has not perfected a claim of adverse possession, we need not decide if this claim could have been perfected under the traditional doctrine of adverse possession.

With respect to the damages awarded, they appear to be supported by competent, substantial evidence, and we will not substitute our judgment for that of the trial judge. The judgment is therefore

AFFIRMED.

DAUKSCH, C. J., and CROSS, J., concur.

      . 25 Am.Jur.2d, Easements, § 4, p. 417, defines it as follows: “A profit a prendre, also called ‘right of common,’ is a right exercised by one person in the soil of another, accompanied with participation in the profits of the soil, or a right to take a part of the soil or produce of the land. It is therefore distinguishable from an easement, since one of the features of an easement is the absence of all right to participate in the profits of the soil charged with it. A profit a prendre is similar to an easement, however, in that it is an interest in land. It cannot be created by parol, but is created by grant, and may be either appurtenant to other land or in gross. If enjoyed by reason of holding certain other estate, it is regarded as appurtenant to that estate and may not be severed therefrom. On the other hand, if it belongs to an individual distinct from any ownership of other lands, it takes the character of an estate in the land itself and is assignable or inheritable.
      Examples of rights of profit a prendre are the right to take timber, gravel, coal, or minerals generally, from the land of another; the right to graze sheep on the realty of another, and the right to fish or hunt on or over the land of another.”


author: SHARP, Judge. ORFINGER, Judge,

text:
    Curtis D. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-118.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.
    Curtis D. Collins, pro se.
    Robert Eagan, State’s Atty., Ninth Judicial Circuit, for appellee.
   SHARP, Judge.

This case is remanded to the trial court to do one of the following pursuant to Rule 3.850: (1) attach a copy of the portion of the files and records which conclusively shows the prisoner is entitled to no relief; (2) grant a prompt hearing on the issue of incompetency of counsel after notice to the prosecuting attorney and after appointment of counsel for the prisoner.

REMANDED TO TRIAL COURT.

UPCHURCH, F., J., concurs.

ORFINGER, J., dissenting with opinion.

ORFINGER, Judge,

dissenting:

I respectfully dissent. As I read Rule 3.850, Fla.R.Cr.P., if the trial judge deems a motion legally insufficient on its face, he may summarily deny the motion and need not attach copies of the record or grant an evidentiary hearing. Although the trial judge did not so state here, we must assume that he found the motion insufficient on its face because he did not attach copies or grant an evidentiary hearing, and review the order in that light. It is a useless act to send this case back to the trial judge merely to have him tell us that he'found the motion insufficient on its face. I think it is insufficient on its face.

Of the grounds cited, only the complaint of inadequacy of counsel warrants more than superficial review, and it does not appear to me that the allegations in support of that claim state a ground for relief. Appellant reviews some of the evidence and suggests that the trial could have been handled another way, but even if true, this is not a sufficient allegation of incompetent assistance. We all have 20/20 hindsight. Absent a showing that defense counsel was necessarily incompetent, a defendant is not entitled to post-conviction relief on the claim of inadequate representation by trial counsel. Jackson v. State, 353 So.2d 940 (Fla. 3d DCA 1978); Parker v. State, 295 So.2d 312 (Fla. 1st DCA 1974) and Potts v. State, 242 So.2d 729 (Fla. 3d DCA 1971). A defendant is entitled to a fair trial, not necessarily a perfect one. Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974). Erroneous advice by or an error in judgment of counsel is not sufficient to render the assistance ineffective. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

Although the courts have receded from the “mockery of justice” standard, this test is still applied:

We interpret the right to counsel to mean not errorless counsel, and counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. McKen-na v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976).

See also Douglas Ray Meeks v. State of Florida, 382 So.2d 673, 1980, Florida Supreme Court.

As was said in Foxworth v. Wainwright, 319 F.Supp. 593 (N.D.Fla.1970):

In this regard, the standard to be observed is not whether [the] petitioner would have fared better if his counsel had been more experienced, knowledgeable or aggressive, but rather whether the record establishes that he lacked the minimum standards of competence necessary to satisfy petitioner’s constitutional right to counsel.

I do not believe the petition is sufficient on its face to make a prima facie showing of ineffective assistance of counsel when measured by the foregoing tests, and I would affirm the trial judge’s order denying the motion.


author: UPCHURCH, Judge. DAUKSCH, Chief Judge,

text:
    Henry CHURCH, Appellant, v. William STRICKLAND et al., Appellees.
    No. 79-723/T2-26.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      David E. Cauthen, Tavares, for appellant.
    Steven J. Richey, Leesburg, for appellee.
   UPCHURCH, Judge.

This is an interlocutory appeal under Florida Rules of Appellate Procedure 9.130(a)(5), from the Circuit Court for Lake County, Florida, from an order setting aside partial summary judgment pursuant to Florida Rules of Civil Procedure 1.540 on the grounds , of excusable neglect. Appellant was the plaintiff below.

Appellant had filed a complaint seeking damages arising from a fire set by appel-lees’ daughter. Appellees, through their attorney, filed an answer in which certain allegations of the complaint were admitted. Appellant moved for summary judgment. In the interim, appellees’ attorney died and replacement counsel appeared. The record reflects that the new attorney relied on handwritten notations of the deceased attorney indicating that these allegations were denied, and that he failed to perceive the effect of admissions in the answer until the hearing held on September 5, 1978, at which the court granted a partial summary judgment reciting that it was based in part on the admissions contained in the answer, even though certain depositions and affidavits denied liability. On September 14, 1978, appellees filed a motion for relief from the order of partial summary judgment under Florida Rules of Civil Procedure 1.540. The court entered its order on March 15, 1979, setting aside the order for partial summary judgment.

Appellees’ attorney candidly admits that he was negligent in failing to discover the effect of the admissions in the answer prior to the hearing.

The first question before the lower court was whether substitute counsel’s negligence was excusable neglect warranting relief. The court in setting aside the partial summary judgment found:

1. Defendants argued that the answer which was filed by the first attorney of record, Henry E. Coleman, contained an error which the plaintiff has used to support his Motion for Summary Judgment.
2. The Court finds counsel’s reliance on notes and documents of prior counsel excusable neglect, caused by the confusion surrounding the death of prior counsel.

A motion filed under Florida Rules of Civil Procedure 1.540 is addressed to the sound discretion of the trial court. Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977); Kash ’N Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969). It is the duty of the trial court, not the appellate court, to make the determination whether the facts constitute excusable neglect, mistake, or inadvertence within the rules. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Farish v. Lum’s Inc., 267 So.2d 325 (Fla. 1972). This discretion is of the broadest scope. To reverse the judge’s ruling, there must be a showing of gross abuse of discretion. Schwab, supra. See also North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962), where the court, in reviewing an order vacating a default, said that if there is any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing the trial upon the merits.

Appellant has also raised a second question, whether defendant’s motion should be denied on the grounds that it fails to show a meritorious defense to the summary judgment.

A party seeking to have a judgment set aside under Florida Rules of Civil Procedure 1.540, claiming mistake or excusable neglect, must show the existence of a meritorious defense to the suit. Butler v. Butler, 172 So.2d 899 (Fla. 3d DCA 1965).

In the case before us, appellees contend that (1) a response to the request for admissions; (2) the depositions of defendant Strickland; and (3) the deposition of a witness, James W. Morris, raised a question as to the issue of liability. It is noted that the court in its order cited the original answer in its findings of a basis for granting the order of partial summary judgment. Undoubtedly, the court found that without the admission in the answer included through the excusable neglect of counsel, there would have been an issue of liability raised, thereby precluding the grant of summary judgment.

Whether the negligence of the attorney was excusable is a factual matter to be resolved by the trial judge. It has not been demonstrated that the learned judge in the court below abused his broad discretion and we will not interpose our judgment for his. AFFIRMED.

ORFINGER, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion, this is a case where the neglect of counsel was so egregious that we should not permit the error in setting aside the partial summary judgment to go uncorrected. While I hesitate to set out the facts in this case for fear a dangerous precedent will be set by the affirmance the majority has seen fit to award I must do so in order to support my opinion.

Appellee was sued for negligence and went to an attorney for representation. That attorney undertook the representation and filed an answer to the complaint, which answer admitted certain facts. Shortly thereafter the attorney died and new counsel undertook to represent appellee. The new attorney entered the scene by filing his notice of appearance on June 12, 1978, approximately one month after the deceased attorney had filed the answer. On July 13, 1978, appellee filed a motion for Partial Summary Judgment and on September 5, 1978, the court heard and granted the motion.

Not until November 28, 1979, did appel-lee’s counsel file his motion to set aside the judgment under Rule 1.540(b), Rules of Civil Procedure, alleging excusable neglect. It is noted he did file a motion for rehearing on the order granting the motion for summary judgment. This motion was filed September 14, 1978, and denied on November 14, 1978.

It seems to me that appellee’s counsel had from June 12, 1978, the day he filed his notice of appearance, until September 5, 1978, the day the hearing on the motion for Partial Summary Judgment, in order to get his “act together.” This is quite enough time to check the court records in the courthouse, located in the same small town as his law office, and see what the case file might disclose. The negligent failure to do that is enough for me to say the trial judge erred in setting aside the judgment, therefore I have absolutely no problem deciding that counsel was grossly negligent by failing to move to set aside the judgment until two and one half months after the judgment was entered. The order setting aside the judgment was not entered until March 15, 1979!' This is quite unfair to appellants and should not be condoned by this court. The negligence of counsel is not excusable and the grace granted by the trial judge and the majority here compounds the injury.

      . Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospec-five application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.
      Writs of coram nobis, coram vobis, audita querela and bills of review and bills in the nature of a bill of review are abolished and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.


text:
    Raymond A. BROOKS, Appellant, v. The SCHOOL BOARD OF BREVARD COUNTY, Florida, Appellee.
    No. 80-46.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.
    C. Anthony Cleveland, Tallahassee, for appellant.
    Bill Walker, Titusville, for appellee.
   ORFINGER, Judge.

Appellant appeals his discharge from employment by Appellee. The appeal is filed pursuant to Section 120.68, Florida Statutes (1978). At the same time he filed an appeal with the Department of Education under the provisions of Section 231.36(6), Florida Statutes (1978), and the Department has agreed to review the decision of the appel-lee. This latter information comes to us in a motion filed by appellant requesting us to stay the appeal in this court and to relinquish jurisdiction to the Department of Education.

The appellee responds by a motion to dismiss the appeal alleging, among other things, that in separate and distinct proceedings the appellant’s teaching certificate was revoked by the Department of Education and that such revocation is the subject of a current appeal before the District Court of Appeal, First District, and that the appellant is not entitled to another appeal before the Department of Education or before this court. Notwithstanding this response, it appears that the instant appeal is from action of the appellee in discharging the appellant, and does not directly arise out of the action of the Department in revoking appellant’s teaching certificate, although there certainly may be some connection between these events.

Nevertheless, in view of the administrative appeal which appellant has requested and which the Department of Education has agreed to hear, it does not appear that we have jurisdiction to retain the appeal in this court. Where administrative review procedures are available, a party must exhaust these remedies before judicial review is appropriate. General Electric Credit Corporation of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977). Until such time as administrative remedies have been exhausted, appellant may not seek relief in the courts from the asserted action of the school board. School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974).

It appears that this appeal is premature because administrative action is not complete. The aggrieved employee may not appeal to this court until the administrative appeal to the Department is concluded. School Board of Pinellas County v. Noble, 372 So.2d 1111 (Fla.1979); Phillips v. Santa Fe Community College, 342 So.2d 108 (Fla. 1st DCA 1977).

The motion to stay the proceedings is denied and the motion to dismiss the appeal is granted.

APPEAL DISMISSED.

CROSS and COBB, JJ., concur.


text:
    Terry J. STANAGE, etc., et al., Appellants, v. Wayne D. BILBO, etc., et al., Appellees.
    No. 79-789/T2-29.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.
    Kenneth R. Cate, of Maher, Overchuck & Langa, Orlando, for appellants.
    Bob Williams and David E. Cauthen, of Cauthen, Robuck, Cyrus & Hennings, Ta-vares, for appellees.
   ORFINGER, Judge.

This appeal questions the propriety of the summary final judgment entered by the trial court in favor of appellees, defendants below.

The undisputed facts before the trial court reveal that a thirteen year-old girl purchased two six packs of beer from defendant while her two teenage male companions waited in a pick-up truck around the back of defendant’s building where they had parked so they would not be seen. The three teenagers then drove out to nearby lime pits to camp, and there the boys, one of whom was the minor plaintiff, each consumed several of the beers. The truck was driven by the other boy who had a sawed-off shotgun hidden behind the seat, and who removed the shotgun for protection while they hunted firewood. Upon return to the campsite the youth holding the shotgun stumbled because of his unsteadiness caused by drinking beer and the shotgun discharged, injuring the plaintiff.

The plaintiff’s cause of action was based on the violation of law by defendant in selling beer to the 13 year-old girl contrary to Section 562.11, Florida Statutes (1975). He argues that this breach is negligence per se and entitles him to damages because his injury would not have occurred but for this violation. We conclude that the trial judge was correct in granting the summary judgment.

The fact of negligence per se resulting from a violation of a statute does not mean that there is actionable negligence. Among other things it must be shown that the violation of the statute was a proximate cause of the injury, de Jesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973).

We adopt the view and conclusions expressed in Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), in a factual situation quite analagous to this one, wherein the court stated:

Negligence per se does not constitute strict liability. Placing into the flow of commerce alcoholic beverages, by selling same to a minor, does not render the vendor strictly liable for every ensuing act that intervenes between the sale and the consumption of same. Liability must in every instance be determined by the circumstances. Williams v. Youngblood, 152 So.2d 530 (Fla. 1st DCA 1963). Foreseeability and proximate cause are essential principles of negligence actions that must be alleged. “Probable cause” is not “possible cause”. “Foreseeable” is not “what might possibly occur”.

Because probable cause and foreseeability are clearly not present here, we find no error in the entry of summary judgment for defendant. The judgment of the trial court is therefore

AFFIRMED.

COBB and SHARP, JJ., concur.


author: PER CURIAM. CROSS, Judge,

text:
    Charles A. COLLIER, Appellant, v. CRANE INSPECTION AND CERTIFICATION BUREAU, INC., etc., Appellee.
    No. 78-2592/T4-320.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      James R. Cunningham, of Moreland & Cunningham, P. A., Winter Park, for appellant.
    Richard W. Bates, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

CROSS, Judge,

dissents with opinion.

I respectfully dissent.

Appellant-defendant, Charles A. Collier, appeals a final judgment entered in favor of appellee-plaintiff, Crane Inspection and Certification Bureau, Inc., in an action for damages for Collier’s breach, of a non-competitive agreement.

Collier, in violation of his agreement not to compete with Crane, successfully bid against Crane for a contract with the United States Navy to operate a training program for crane inspectors. Crane sued for breach of the agreement and was awarded $7,500 to compensate it for the profit that it had expected to earn from the contract. The basic thrust of the appeal is whether the evidence was sufficient to support the judgment for damages.

When prospective profits are sought as an element of damages, their amount must be established with enough certainty to satisfy the mind of a prudent and impartial person. Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936). Proof of this amount requires more than mere speculation and conjecture, since the award needs some basis in fact. Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975); Florida Outdoor, Inc. v. Stewart, 318 So.2d 414 (Fla. 2d DCA 1975).

The only evidence of the appellee’s expected profit from the contract was the testimony of Mr. Vernau, a vice-president of the appellee corporation who was “involved in the preparation of bids.” When asked about the profit that had been figured into the bid, he stated: “As a rule, we anticipate a net margin of about 20 percent which in this case would be about $7,500.” I am convinced that the law cannot countenance an award of damages based only on this evidence.

The amount of the appellee’s prospective profit might more properly have been established by showing the total cost of labor, services and materials necessary to perform the contract and then deducting that sum from the amount of its bid. See, Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). I would, therefore, reverse the final judgment and remand for a new trial only on the issue of damages.


text:
    BOOTH STEAMSHIP CO., LTD., d/b/a Booth Steamship Lines, Appellant, v. Jose CALZADA and Norberto Albalat, Appellees.
    Nos. 79-14, 79-1047.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.

      Fowler, White, Burnett, Hurley, Banick & Knight and C. Douglas Skinner, Miami, for appellant.
    J. James, Donnellan, III, Miami, for ap-pellees.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

The appellant-defendant appeals from an order denying a motion for new trial. It contends that the trial court erred in granting a directed verdict in favor of the appel-lee-plaintiffs at the close of the evidence by reason of the trial court’s failure to apply federal maritime law.

Plaintiffs commenced an in per-sonam action against the defendant by reason of a collision between a freighter operated by the defendant and a small craft from which the plaintiffs were fishing. Plaintiffs’ craft was struck at a designated anchorage area at a site somewhat less than three miles off the southern portion of Miami Beach in the Atlantic Ocean. The specific area of the collision is designated as being embraced within the inland rules of the road. 33 C.F.R. 109, 110.188. Admiralty jurisdiction extends to collisions between small pleasure boats and commercial vehicles. It is obligatory that federal maritime law be applied in both federal and state courts. Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Bilbrey v. Weed, 215 So.2d 479 (Fla. 1968). Under maritime law, the doctrine of comparative negligence applies. United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).

In the present case, there is evidence which indicates: (1) failure on the part of the plaintiffs to maintain a diligent lookout regarding the approach of the freighter; (2) their unauthorized use of a light; (3) failure to display a red light; and (4) that plaintiffs laid out more anchorline than needed to properly stabilize their craft. From this evidence, the jury might have inferred that plaintiffs’ actions were the partial or sole proximate cause of the injuries complained of. Accordingly, applying the doctrine of comparative negligence, a finding by the jury that plaintiffs were to some degree at fault would require apportionment of the damages.

For the foregoing reasons, the judgment in favor of the appellees is reversed with directions to award the appellant a new trial as to all issues.


text:
    Clinton JOHNSON, Appellant, v. Hazel JOHNSON, Appellee.
    Nos. 79-1112, 79-1113.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Nelson & Nelson and Stephen H. Nelson, Hialeah, for appellant.
    Snowden, Kornreich, Reichenthal & Mig-dall, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The contempt order under review, which punishes the husband appellant herein for failure to pay child support arrearages due under a prior divorce decree, is reversed upon a holding that: (a) the child in question had become self-supporting at the time of the contempt hearing herein so that the husband no longer had a current obligation to support the child under the prior divorce decree, and, under such circumstances, the extraordinary remedy of contempt did not lie to enforce the payment of such child support arrearages; and (b) the only remedy in this cause to enforce the child support arrearages due and owing was an action for money judgment rather than contempt proceedings. Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980); Gersten v. Gersten, 281 So.2d 607 (Fla. 3d DCA 1973); Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970). By this ruling, the companion appeal in this case has become moot. It is, accordingly, our judgment that the contempt order appealed from is reversed and the cause remanded to the trial court with directions to vacate said order.


author: HENDRY, Judge.

text:
    LINDGREN, INC., etc., et al., Appellants, v. Joseph DAMES, Appellee.
    No. 79-1655.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.

      Robert H. Crary, Jeanne Heyward, Miami, for appellants.
    Ser, DeCardenas, Levine, Busch & Allen and Elliott H. Lucas, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

This is the second appearance of this personal injury case before this court; two separate trials had been held, one on the liability issue and a subsequent trial on damages. We have reviewed and upheld the final judgment in favor of Dames on the liability issue. See Lindgren, Inc. v. Dames, 370 So.2d 471 (Pla. 3d DCA 1979). The subsequent trial on damages resulted in a verdict in favor of Dames in the sum of Two Hundred Dollars ($200.00). Appel-lee/plaintiff filed a motion for a new trial which the trial court granted. The order under review states in pertinent part:

“1. The Court finds the verdict of the jury was grossly and clearly inadequate and contrary to the manifest weight of the evidence.
“2. The Court finds this cause was heard by the jury on the issues of damages only and the Court is of the opinion that the jury did in fact just consider the issue of damages but that its verdict was grossly and clearly inadequate and contrary to the manifest weight of the evidence.
“3. The Court clearly finds that, considering the nature of the injuries sustained by the Plaintiff as a result of the motorcycle/motor vehicular accident, where the primary injury stems from the contact of the body of the Plaintiff sliding along the road, the injuries sustained therefrom graphically described by a registered nurse who observed the conditions shortly after the injury, reasonable men could not have concluded under the testimony before them that an award of $200.00 was reasonable and appropriate or a just verdict.
“4. The Court finds there was extensive testimony about Workmen’s Compensation and other benefits and the jury may well have improperly considered this as a factor.
* * * * *
“6. The Court finds that it appears that the verdict of $200.00 was a token verdict almost to the point of punishing the Plaintiff for the way he acted in the Courtroom.
“7. The Court finds that the verdict of $200.00 was grossly inadequate and that a, jury of reasonable men could not have reached said verdict.
“8. The Court finds that the verdict of $200.00 could not have been reached by the jury were they not persuaded by some other factors that were outside the scope of the evidence and outside of the Court’s instructions.
“9. The Court finds that the verdict was so grossly inadequate so as to shock the conscience of the Court.
“It is therefore:
“ORDERED AND ADJUDGED that the Plaintiff’s motion be and it is hereby granted and a new trial on the issue of damages be held.”

The record clearly supports the decision of the trial court, and we agree with the appellee that the trial court did not abuse its discretion in setting aside the jury ver-diet and granting a new trial. See Cloud v. Fallís, 110 So.2d 669 (Fla.1959); Pyms v. Meranda, 98 So.2d 341 (Fla.1957); Diaz v. Certified Marine Industries, Inc., 346 So.2d 1211 (Fla. 3d DCA 1977); Hubbard v. Brown, 262 So.2d 267 (Fla. 2d DCA 1972); Miles v. Ware, 204 So.2d 524 (Fla. 3d DCA 1967).

Affirmed.


text:
    Guido CARILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1657.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Lyons & Farrar and Marsha L. Lyons, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.

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

Defendant, Guido Carillo, appeals the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850.

Carillo was indicted for conspiracy to commit murder. He filed various discovery motions including a demand for “Brady" material specifically requesting any written or recorded statements, police investigative reports or any other information or material which would tend to establish his innocence or to impeach or contradict testimony of any witness whom the State would call at the trial. The prosecution filed a response which alleged that the State was unaware of any Brady material. The cause proceeded to trial at which William Salon was the sole witness to offer any evidence against Carillo concerning his participation in the conspiracy. Carillo was found guilty and sentenced to eight years imprisonment. Subsequently, Carillo filed the instant motion to vacate judgment and sentence on the ground of newly discovered evidence. He alleged that subsequent to the trial (and appeal), he had learned that the State had withheld “Brady” evidence. Specifically, he discovered for the first time that the State had administered to Salon a polygraph examination which he allegedly failed according to the examiner’s potes and report. The motion to vacate was denied without an evidentiary hearing by the same judge who presided over the trial. This appeal from the summary denial ensued. We affirm.

With regard to the ground of newly discovered evidence, a new trial will not be granted unless such evidence is discovered after the former trial. See Thomas v. State, 374 So.2d 508, 515 (Fla.1979). Similarly, if the matter forming the basis of a motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction. State- v. Matera, 266 So.2d 661, 666 (Fla.1972). An examination of the record reflects that defense counsel for Carillo was apprised of the polygraph test administered to Salon during cross-examination of Detective Alonso at the trial. Nevertheless, defense counsel made no further inquiry during the trial regarding this matter.

As concerns the argument that the State failed to comply with defense counsel’s demand for discovery pursuant to Fla. R.Crim.P. 3.220, the law is well established that since noncompliance with Rule 3.220 does not require automatic reversal, the burden is upon the defendant to raise a timely objection and thereby allow the trial court to make inquiry into all of the surrounding circumstances and then specifically rule on the issue. Lucas v. State, 376 So.2d 1149 (Fla.1979). Again, the record fails to demonstrate any objection or demand for inquiry on the part of defense counsel upon learning of the polygraph examination.

Finally, we believe that the alleged materiality of Salon’s remark that he was at the scene of the homicide is totally irrelevant with respect to Carillo’s having conspired to kill the victim several months earlier and, therefore, not “Brady" material.

For the reasons stated, the summary denial of the motion to vacate is affirmed.

Affirmed.


text:
    SUNSHINE SOUND ENTERPRISES, INC., Petitioner, v. Jeannette WILLIAMS, Respondent.
    No. 79-2386.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.

      Woodrow “Mac” Melvin, Jr., Miami, for petitioner.
    Kenneth W. Whittaker, Koppen & Watkins and George J. Lott, Miami, for respondent.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This is a petition for writ of certiorari seeking review of an order of the trial court directing petitioner/defendant to produce all documentary material which might be reasonably required in order to permit the respondent to conduct an accounting of all matters which were made the subject of her complaint for an accounting.

The order under review was objected to on the ground that the trial court had not, and still has not, determined whether or not any right to an accounting exists. We find merit in petitioner’s objections. The trial court departed from the essential requirements of law in entering the order under review. The law is well-settled that it is premature to order the production of documents, objects, or things pertaining to the accounting itself, until the right to an accounting is determined. Discovery may be had as to matters pertaining only to plaintiff’s right to an accounting. Aly Handbags, Inc. v. Rosenfeld, 305 So.2d 56 (Fla.3d DCA 1974); Armstrong v. Piatt, 201 So.2d 830 (Fla. 4th DCA 1967); 1 Fla. Jur.2d, Accounts and Accounting § 24.

The petition for certiorari is granted and the order under review is quashed and the cause is remanded for further proceedings.