author: COBB, WARREN H., Associate Judge.

text:
    Mark HERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1104.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.

      Geoffrey C. Fleck and Alfonso C. Sepe, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, WARREN H., Associate Judge.

The defendant, Mark Herman, was convicted of the first degree murder of Richard George Kreusler, and sentenced to life imprisonment. On appeal, he raises ten separate points. We affirm for the reasons hereinafter set forth, and for that reason the cross-appeal by the state is moot.

The trial evidence revealed that Kreusler was fatally injured by two or three shotgun blasts as he answered his doorbell on the evening of January 16,1976, in Palm Beach County, Florida. There were no witnesses to the crime. Several neighbors testified to seeing a small yellow or orange car with a black top in the area near the time of the shooting. The police recovered two discharged 12-gauge “double aught” shotgun shell casings outside the Kreusler home, and three shotgun shell wads. No other physical evidence was found at the scene of the crime. Ballistic tests and other evidence indicated these shell casings had been fired by a pump-style shotgun.

The defendant, who was not then a suspect, was questioned in May, 1976, about the Kreusler homicide and told officers that a shotgun he had received and subsequently returned to a third party was a 20-gauge double-barrelled shotgun. Subsequently, in August, the police came into possession of a sworn statement from one Ronald Gates, a fugitive facing state robbery charges and federal extortion charges. As a result of that statement, Herman became a suspect in the Kreusler homicide. Based on information in the statement, the police ascertained that a shipment of the defendant’s goods were in a warehouse in Tempe, Arizona. A search warrant was obtained and a 12-gauge pump shotgun was seized, together with various shotgun shell casings, none of which was “double aught.” Subsequent ballistic tests in regard to this weapon were “inconclusive.”

In November, 1976, Herman was convicted of unrelated crimes in state criminal court. He was incarcerated in the Palm Beach County Jail between then and the following January, awaiting sentencing. In December, one Dexter Drake Coffin, III, a twice-convicted felon, produced a confession to the Kreusler homicide, allegedly authored by the defendant. Coffin and Herman had been incarcerated together in the same jail, but in separate cells. Coffin, a “jailhouse lawyer,” purportedly was advising Herman on the procedures of an insanity defense to preclude the imminent sentencing. The note explained the Kreusler homicide as a case of mistaken identity, the idea being to shoot a neighbor of Kreusler’s, Billy Glocker, who had cheated Herman in a drug deal. Herman, intoxicated by the effects of morphine and delaudid, mistakenly went to the wrong house, according to the note. A fingerprint analysis of the note confirmed the prints of Coffin and an alleged jail intermediary, Kane, on the document, but none from the defendant. Coffin used his delivery of the confession to the state attorney as a basis for a motion to mitigate the sentence he was serving. Testimony was adduced at trial from two other inmates concerning inculpatory verbal statements made by the defendant in the jail.

We consider appellant’s ten points on appeal seriatim:

POINT I

Appellant moved for a new trial below on the ground that the state, in violation of the Brady rule, failed to disclose promises made to a state witness, Gerard DeNono. The record reveals this point to be frivolous. No deal was made with De-Nono by the state that required disclosure. The fact that DeNono was hoping for leniency as a result of his testimony was not a deal requiring disclosure. DeNono’s counsel had been advised by the assistant state attorney in regard to the law of Florida concerning the doctrine of use immunity — i. e., that DeNono’s testimony in the Herman trial could not be used against DeNono in his forthcoming first degree murder trial— and the prosecutor had stated that, if subpoenaed to testify at DeNono’s sentencing procedure, he would tell the sentencing judge of the fact that DeNono had cooperated in the Herman case.

An explanation of a point of law to defense counsel and a representation to tell the truth in response to a subpoena are not “promises” to a witness by a state that compel disclosure. Cf. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

POINT II

The appellant contends that the indictment against him was fatally tainted by the participation of a grand juror, Teresita Her-ron, who was married to Major Robert G. Herron, head of the detective bureau within the Palm Beach County Sheriff’s Office, which investigated the Kreusler homicide. The question appellant seeks to raise is whether or not section 905.04(l)(b), Florida Statutes (1977), disqualified Mrs. Herron from grand jury duty because of her interest in the subject matter: the homicide her husband had investigated.

In support of this argument, the appellant relies on Cawthon v. State, 115 Fla. 801, 156 So. 129 (1934). In that case, the Florida Supreme Court held that a statute providing that neither a sheriff nor deputy sheriff could be qualified as jurors applied to a commissioned deputy sheriff of Santa Rosa County who had accepted his commission, but had not given bond nor exercised the duties of a deputy sheriff at the time he served as a grand juror. That case is clearly distinguishable from the instant situation.

The state argues that the challenge to Mrs. Herron as a grand juror came too late, because it was after the jury was impan-elled. See section 905.05, Florida Statutes (1977). The state maintains that the appellant presented no proof to the trial court that he came within the statutory exception regarding persons ignorant of the prospective grand jury investigation and, therefore, the motions challenging Mrs. Herron were untimely and properly denied. Seay v. State, 286 So.2d 582 (Fla.1974), cert. denied, Seay v. Florida, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974); Whitney v. State, 132 So.2d 599 (Fla.1961).

The state further argues that the hearing evidence did not meet the burden of proving that Mrs. Herron had a state of mind which would have prevented her from acting impartially and without prejudice to Herman’s substantial rights. At the hearing on appellant’s motion to disqualify Mrs. Herron, both she and Major Herron testified. He stated that he never discussed his work with his wife, and that he himself did not have any part in the investigation of the Kreusler case; Mrs. Herron disavowed any communication with her husband in regard to the case, and swore that she was impartial and unprejudiced. No evidence to the contrary was adduced, and the trial court denied the challenge.

We believe the record reveals that the appellant raised the challenge to Mrs. Herron in timely fashion, and that the trial court considered the motion on the merits, rather than dismissing it as untimely. Moreover, the state’s objection to the timeliness of the challenge was not made to the trial court, which entertained and decided the motion on its merits. The state cannot raise timeliness for the first time on appeal. See State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978).

On the merits, however, we find no evidentiary basis, other than the inferences available from the fact of the marital relationship itself, to support a finding that Mrs. Herron had a state of mind which prevented her from acting impartially. No specific statutory basis existed to disqualify her. The burden to show the basis for discharge at the hearing was on the mov-ant. See State v. Demetree, 213 So.2d 709 (Fla.1968). The presumption is that a grand juror is qualified and exercises sound judgment. Clemmons v. State, 141 So.2d 749 (Fla. 1st DCA 1962), modified, 150 So.2d 231 (Fla.1963). There is not a sufficient basis before this court to overturn the trial court’s denial of the challenge to Mrs. Her-ron.

POINT III

The appellant asserts he was prejudiced in trial preparation by the denial of his motion for a continuance. The motion was made on the day trial was set to commence (it had been scheduled for six months), and following more than six months of discovery. The trial court systematically determined that the defendant would have the opportunity to at least depose each state witness prior to his or her testimony. Open file discovery had been afforded the defendant. Under these circumstances, we cannot find that the trial court violated its broad discretion in matters of requested continuances. See Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 292 (Fla.1976).

POINT IV

The appellant urges that the trial court erroneously denied his motion to suppress the shotgun seized in the warehouse in Tempe, Arizona, because of the insufficiency of the affidavit upon which the search warrant issued.

The state responds, inter alia, that the defendant lacked standing to raise this issue because he did not have a legitimate expectation of privacy in the invaded place. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas, 99 S.Ct. at 423 — 424, n.l. The defendant was placed on notice of this burden when the state raised the issue of standing before the trial court. The hearing evidence in the instant case shows that the affiant, Officer Harry Hawkins of the Phoenix Police Department, after receiving information relayed to him by Palm Beach authorities, called personnel of the Bekins Moving & Storage Company, with warehouse facilities in Tempe, and, through company invoice records, ascertained the various items which Herman had shipped to Arizona, including the shotgun.

In United States v. Novella, 519 F.2d 1078 (5th Cir. 1975), cert. denied, 423 U.S. 1060, 96 S.Ct. 797, 46 L.Ed.2d 651 (1976), it was held that a defendant who stored marijuana in a rental warehouse, knowing workmen and other tenants had access to the area, had no reasonable expectation of privacy with respect thereto.

In United States v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978), it was held that lessees of a warehouse had no reasonable expectation of privacy where they knew that access by the public was unrestricted and gates and doors were left open and unguarded.

The recent United States Supreme Court case of United States v. Salvucci overruled Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the “automatic standing” case, and held that defendants charged with crimes of possession may only claim the benefit of the exclusionary rule if their own Fourth Amendment rights have, in fact, been violated. In determining this, “it must be asked not merely whether the defendant has a possessory interest in the items seized, but also whether he had an expectation of privacy in the area searched.” Salvucci, 100 S.Ct. at 2552-2553.

Given the evidence adduced at the hearing before the trial court, it does not appear that the defendant met his burden of establishing a reasonable expectation of privacy in respect to the warehouse storage facilities in Tempe, and we therefore approve the denial by the trial court of the motion to suppress the shotgun on the basis of the Fourth Amendment argument presented to it.

POINT V

The next point urged by appellant is that the trial court erred in excluding certain jurors for cause because of their expressed opposition to the death penalty. Since no death sentence was imposed in this case, the appellant lacks standing to raise this issue on appeal. A “death-oriented” jury is not, ipso facto, a “guilt-oriented” jury. Cf. Witherspoon v. Illinois, 391 U.S. 510, 517-518, 88 S.Ct. 1770, 1774-1775, 20 L.Ed.2d 776 (1968). Even if this point were properly before us, the record clearly shows that there was timely objection by the defense to the excusal by the court of only three such jurors: Mrs. Wyman, Mr. Silber-berg, and Mr. Ford. See Brown v. State, 381 So.2d 690 (Fla.1980).

Prospective jurors Wyman, Silber-berg and Ford, on voir dire, stated that they could not vote to impose the death penalty under any circumstances. This constitutes grounds for challenge for cause. In Brown, the Florida Supreme Court stated:

We have recently held that a prospective juror may be excused for cause if it is shown that he “would vote against death regardless of the facts presented or the instructions given.” Jackson v. State, 366 So.2d 752, 755 (Fla.1978). We have also upheld the exclusion of a prospective juror who said that he “wouldn’t know” if he could find the defendant guilty where it might result in capital punishment. Williams v. State, 228 So.2d 377, 381 (Fla.1969), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972).

381 So.2d at 694.

The appellant also objected to any questions to jurors concerning the death penalty because section 921.141, Florida Statutes (1977) provides for the possibility of empanelling a separate advisory jury. This point was decided adversely to appellant’s position in Riley v. State, 366 So.2d 19 (Fla.1978).

POINT VI

As the sixth point, appellant argues that the trial court erred in admitting defendant’s shotgun into evidence on the grounds that the state failed to establish the requisite predicate for admission and that the admission was prejudicial and requires a new trial. During argument on the admission of the shotgun, the prosecutor stated:

Your Honor, if Agent Bollenbach were permitted to give his opinion not to a reasonable scientific certainty, but if he were permitted to guess at whether or not it was the weapon, his guess would be that he thinks it probably isn’t. There are characteristics which he cannot explain which do differ.
However, he will state that he cannot conclude that that weapon, that there could have been modifications made in that weapon which account for the discrepancies that he notes, (emphasis added).

The F.B.I. expert’s actual testimony was that he could not conclude to a reasonable scientific certainty one way or another whether the shells were fired from the weapon admitted into evidence. There was also testimony at trial by a police officer that during the investigation he told Mark Herman that he was interested in a 12-gauge shotgun and that Herman was very nervous, which was out of character. And according to state’s witness DeNono, defendant told him at first that the shotgun the sheriffs were looking for was deep-sixed; “later he told me that they’re running around looking for a shotgun and they got the damn thing in their possession.”

There is no issue concerning admissibility of the testimony that Herman owned a shotgun. This testimony was relevant and admissible. In regard to admission of the shotgun itself, if the expert had simply testified, as he did, that he could not say one way or the other, then the admission of the shotgun would clearly have been proper. See Harris v. State, 129 Fla. 733, 177 So. 187, 190 (1937). Appellant’s shotgun was of the same caliber as the shell casings found at the scene of the murder. The matching caliber was a circumstance of some probative value. Williams v. State, 73 Fla. 1198, 75 So. 785 (1917); United States v. Gandolfo, 577 F.2d 955 (5th Cir. 1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); United States v. Robinson, 560 F.2d 507, 509 (2d Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). The expert’s testimony that he could not say one way or the other whether the shotgun admitted was the murder weapon, was not conclusive or binding on the jury which was free to determine credibility and weight to be ascribed. See Trolinger v. State, 300 So.2d 310 (Fla. 2d DCA 1974), cert. denied, 310 So.2d 740 (Fla. 1975). Under those circumstances, the jury would be entitled to consider the shotgun and give whatever weight was due in light of the expert’s testimony. See Smith v. State, 235 Ga. 620, 221 S.E.2d 41 (1975); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974).

But in considering the admissibility of the shotgun, the trial court was faced with the state’s representation that the expert would testify, if he had to guess, that it was not the same gun. Bound by that representation, the trial court’s decision to admit the shotgun into evidence was a closer question. See Coco v. State, 80 So.2d 346 (Fla.1955), cert. denied, 349 U.S. 931, 75 S.Ct. 774, 99 L.Ed. 1261, and 350 U.S. 828, 76 S.Ct. 57, 100 L.Ed. 739 (1955). However, assuming arguendo that there was error, we hold admission of the shotgun was harmless because proof of appellant’s ownership of a shotgun was not prejudicial. It is not illegal to own a shotgun. There are no adverse connotations, such as there might be in the case of ownership of a Saturday night special or a zip gun, which would give rise to prejudicial inferences on the part of the jury. There being no reasonable basis upon which a different verdict could have been reached, if admission of the shotgun was error, it was harmless. See Russell v. State, 270 So.2d 462 (Fla. 3d DCA 1972); § 924.33, Fla.Stat. (1979).

POINT VII

The issue here presented is the propriety of the denial by the trial court of a motion for mistrial occasioned by a state witness’ offer, during cross-examination, to take a polygraph test. During a heated cross-examination of the state’s witness, DeNono, the latter volunteered to take a polygraph test, and was immediately told by defense counsel that he couldn’t pass one if given eighty such tests.

Appellant attempts to equate this comment with those cases involving the improper revelation to juries of the result of previously given polygraph tests. Those cases are not analogous. The statement herein amounted to no more than DeNono’s assertion that he was telling the truth, which the jury was free to evaluate for itself. This point on appeal is without merit. Cf. Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

POINT VIII

The appellant contends the prosecutor failed to disclose, contrary to the Brady rule, an exculpatory statement given by a prospective state witness, James Murray. The appellant concedes that he had been apprised, prior to trial, that Murray had given an evidentiary statement favorable to the defendant, although he did not have the specific statement given.

Prior to trial, Murray was listed by both the state and the defense as a witness. The appellant, contends that the state had in its possession a tape recorded sworn statement from Murray to the effect that an automobile owned by one Steve Laiser, a friend of Herman’s, which was similar in appearance to the vehicle seen on the night of the homicide, was inoperable at the time of the homicide. Evidence was given at trial by other witnesses in regard to the existence of this automobile, and its similarity to the description given by the witnesses. The evidence adduced at the hearing on appellant’s motion for new trial was contradictory as to a number of tapes taken from the witness, Murray. It was brought out that the state, after Murray was listed as a defense witness, took Murray’s statement to find out what defense evidence he had. In that statement, Murray first told the police that the Laiser vehicle was not operable at the time of the Kreusler homicide, based on business records that Murray had; subsequently, in response to a subpoena duces tecum, Murray could not produce such records and modified his earlier statement to the effect that he was uncertain as to whether or not the Laiser vehicle was operable at the time of the homicide. Murray also swore that he had previously given his information to the defense, or at least the investigator for the defense. After the state interview ascertaining that Murray had no records or testimony one way or the other concerning the operability of the Laiser vehicle at the time of the homicide, the state removed Murray from the state witness list on the basis that he had no relevant information helpful to either the state or the defendant. The defense then can-celled its scheduled pre-trial deposition of Murray.

Florida Rule of Criminal Procedure 3.220(a)(2), in accordance with the Brady holding, requires that the state disclose to the defense evidence which tends to negate the guilt of the accused as to the offense charged. This obviously refers to exculpatory evidence which the state has and the defense does not have. In the instant case, the evidence of Murray which the state had prior to trial was not exculpatory nor relevant nor admissible. Murray had no material information which tended to negate Herman’s guilt. See Wilcox v. State, 299 So.2d 48 (Fla. 3d DCA 1974).

Even had there been a specific defense request for the pre-trial statement of Murray, which there was not, a new trial is necessary only when that evidence is material. Antone v. State, 382 So.2d 1205 (Fla.1980), cert. denied, - U.S. -, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). Murray’s uncertainty concerning the operability of the Laiser car was not material evidence. Omitted evidence must create a reasonable doubt that otherwise would not exist in order to justify the granting of a new trial. Gosman v. State, 383 So.2d 1178 (Fla. 4th DCA 1980).

The trial judge correctly denied the motion for new trial based on the state’s failure to disclose the Murray statement.

POINT IX

The appellant moved for an evidentiary hearing and a new trial on the ground that the jury acted improperly in reaching its verdict.

The first alleged instance of misconduct raised by appellant occurred during trial. A thirteen-year-old girl, Jennifer Warren, said she overheard a juror’s son, Todd Thomas, tell another classmate on the school bus that his mother, Ona Thomas, who had just been selected as a juror in the Herman case, had a preconceived opinion of the defendant’s guilt. This was brought to the attention of the trial court and an inquiry was held, wherein Todd Thomas denied making the statement attributed to him by the girl and denied ever having discussed the matter of Herman’s guilt or innocence with his mother. The trial court found no basis to remove Ms. Thomas as a juror based on the uncorroborated hearsay statement of Jennifer Warren, and we see no basis to disturb that ruling.

Appellant’s post-trial motions for eviden-tiary hearing and new trial contained multifarious allegations of misconduct by jurors. First, in support of his motion for an evi-dentiary hearing, appellant presented the testimony of Ann Warren (the mother of Jennifer), who testified that she met Juror Ona Thomas at a school function approximately one month after the Herman trial, and overheard a conversation between Thomas and a teacher, Mr. Clepp, in regard to the Herman trial. She testified that Thomas told Clepp that Officer Sheets was a member of her church (a fact disclosed to defense counsel on voir dire) and, being a good Christian, his testimony was true. Ms. Warren then approached Ms. Thomas and asked her questions about the Herman trial. Ms. Thomas told her that she had believed the trial testimony of state witnesses Gibson, DeNono, and Coffin. According to Ms. Warren, Ms. Thomas also told Clepp that she had overheard Defense Counsel Sepe apologize to the prosecutor for his treatment of the witness Sheets, and offer to convey this apology to the jury—an incident denied by Sepe.

Juror Thomas was questioned extensively on voir dire in regard to any preconceived opinions and it was brought out that Lt. Sheets, a scheduled witness for the state, was a member of her church. She swore that she could properly evaluate his credibility, and defense counsel chose not to dismiss her. The fact that Thomas believed the testimony of certain witnesses at trial was not improper. It is the function of a juror to weigh and assess the credibility of witnesses.

In support of the motions, the appellant also presented to the trial court the affidavit of Robert Nelson, which averred that David Reichardt, the son of juror Helen Reichardt, had told him shortly after trial had begun, that his mother believed Herman to be guilty. This assertion, which amounts to nothing more on its face than Reichardt’s belief as to what his mother believed, is patently insufficient and inadmissible. It does not even purport to quote a statement made by the juror in question.

Appellant also presented to the trial court an affidavit from one Barbara Murray, who was a member of the venire at the time the Herman jury was selected, and who swore that one of the jurors selected, Edith Berman, had stated, after her selection but before completion of jury selection, her belief in Herman’s guilt because of “all the trouble he has been in” and because of the grand jury indictment. During voir dire, Juror Berman testified that she had no preconceived opinion about the case, did not know much about it, and would base her verdict solely on the evidence produced at trial.

In the case of McGowan v. State, 89 Fla. 5, 102 So. 890 (1925), the Florida Supreme Court considered an analogous situation. In that case, two witnesses testified at a post-verdict hearing that a trial juror had stated that if the defendants were not convicted, it would not be safe to walk the streets. On voir dire, the juror had disavowed any bias or prejudice and swore to be guided solely by the evidence — as did Edith Berman. The Supreme Court held that it was a matter within the sound discretion of the trial court to accept the answers of the juror on voir dire as opposed to the testimony of the two witnesses. The Court also observed that there was no showing made by counsel for the defense that he could not by due diligence have discovered the fact of the alleged expressions before the jury was impaneled. There was no such showing by defense counsel in the instant case. In McGowan, the Supreme Court stated:

In a matter of this character, where a verdict is attacked upon the alleged disqualification of a juror, and the evidence of such disqualification is supported by ex parte affidavits, the rule requiring a clear and unequivocal statement by the accused and his counsel that they were ignorant of the disqualifying expressions before the jury was impaneled, that due diligence was exerted by them to discover the existence of any such disqualification, and that the matter must be left largely to the discretion of the trial judge, who may know the witnesses and be able to judge their credibility, obtains in this state. See Yates v. State, 26 Fla. 484, 7 So. 880.
After verdict, all presumptions of law are in favor of the juror’s competency, and the burden of proof is upon one who attacks it. See 8 Ency. of Evidence, 986.

102 So. at 892.

POINT X

Appellant’s last point on appeal relates to the trial court’s denial of his motion to prevent television coverage of his trial. The United States Supreme Court has disposed of this issue contrary to the contentions of the appellant in the recent case of Chandler v. Florida, - U.S. -, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981).

CONCLUSION

For the reasons discussed above, the cross-appeal of the state is moot and the judgment of guilt is

AFFIRMED.

UPCHURCH, FRANK D., Jr., and SHARP, WINIFRED J., Associate Judges, concur.

      . Several witnesses testified to hearing three separate shots. This, coupled with the three shotgun shell wads and only two shell casings, indicated the probability of a pump shotgun. The third shell casing would have remained in the chamber of the weapon. Certain microscopic marks on the two spent cases eliminated a bolt action shotgun, a double-barrelled gun, or a single-barrelled gun. An automatic gun would have ejected the third shell casing.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Section 905.04 provides in pertinent part:
      (1) The state or a person who has been held to answer may challenge an individual prospective grand juror on the ground that the juror:

      (b) Has a state of mind that will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging....

      . This admission against interest would have made the shotgun admissible had it preceded the proffer of the shotgun; and the subsequent admission of the admission against interest further supports our conclusion that admission of the shotgun, if error, was harmless.


source: Caselaw Access Project

author: PER CURIAM. WENTWORTH, Judge,

license: Public Domain

text:
    Chris DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. TT-40.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    As Amended on Rehearing April 24, 1981.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Davenport appeals a judgment and sentence based upon a jury verdict finding Davenport guilty of attempted robbery. The appellant had been charged by information with armed robbery with a deadly weapon. The trial judge instructed the jury on the offenses of robbery, attempted robbery, and petit larceny. The judge refused to give appellant’s requested instructions on the lesser offenses of battery, aggravated battery, assault, aggravated assault and assault with intent to commit robbery. The appellant contends that the trial court committed reversible error by failing to give the above lesser included offenses. We do not reach this issue, however, because after a careful review of the record we are unable to find a specific objection by appellant pertaining to the court’s refusal to instruct the lesser included offenses. Florida Rule Criminal Procedure 3.390(d), in no uncertain terms, requires an objection to preserve the issue for appeal. Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980); White v. State, 324 So.2d 115 (Fla. 3d DCA 1976).

However, the trial court erred in failing to sentence appellant pursuant to the Youthful Offender Act, Section 958.-04(2), Florida Statutes. Since the appellant met all the requirements of Section 958.-04(2), the trial court had a mandatory obligation to sentence him under the Act. See Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980) (reh. den.); Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

Since we certified an identical question in Goodson on the issue whether the trial court was required to sentence the defendant there as a youthful offender, we certify the same question here to the Florida Supreme Court as one of great public importance:

Does Section 958.04(2), Florida Statutes (1979), provide for mandatory classification if certain statutory prerequisites are satisfied?

The cause is remanded for resentencing in a manner consistent with this opinion.

ERVIN and SHAW, JJ., concur.

WENTWORTH, J., concurring and dissenting with opinion.

WENTWORTH, Judge,

concurring and dissenting.

I concur in the majority opinion insofar as it requires that appellant be sentenced pursuant to § 958.04(2), the Youthful Offender Act; however, I disagree with the majority conclusion that the jury instruction issue has not been preserved for appeal. While Fla.R.Crim.P. 3.390(d) requires a specific objection to preserve the issue, the Rule further indicates, at subsection (e), that “no exception need be made” to the court’s ruling. In the present case the trial judge held an off-the-record conference on jury instructions after noting that if agreement could not be reached he would then “let counsel state their objection in the record.” After the conference defense counsel indicated, “for the record,” that he requested a jury instruction on various lesser included offenses, which instruction the judge thereafter formally refused. Defense counsel’s statement was sufficient to “apprise the trial judge of the putative error” as required by Castor v. State, 365 So.2d 701 (Fla.1978), and in the circumstances of this case, as in Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981) (dissenting opinion), I would conclude that the issue was adequately preserved for appellate review.

      . We recognize the rule that the failure to instruct on the next immediate lesser included offense (one step removed) is prejudicial error. See State v. Abreau, 363 So.2d 1063 (Fla.1978); Reddick v. State, .394 So.2d 417 (Fla.1981). Neither Abreau nor Reddick, however dealt with the method of preserving the issue for appeal.


text:
    Brenda CAIN and the State of Florida Department of Health and Rehabilitative Services, Appellants, v. Leon Andrew SIMS, Appellee.
    No. WW-345.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Joseph R. Boyd and W. Crit Smith of Boyd, Harris & Smith, P. A. and Chriss Walker of Child Support Enforcement, Dept, of Health and Rehabilitative Services, Tallahassee, for appellants.
    John Robert Grass, Pensacola, for appel-lee.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellee, the defendant in a paternity action brought under Chapter 742, Florida Statute (1979), was awarded attorney’s fees (challenged here) after the plaintiff had taken a voluntary nonsuit pursuant to Rule 1.420(a), Fla.R.Civ.P.

Without deciding whether the case of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), is precedent requiring denial of all post-dismissal motions for award of statutorily allowed attorney’s fees, we simply hold that Section 742.031, Florida Statutes (1979), which allows an award of reasonable attorney’s fees to the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, does not authorize an award of attorney’s fees to the defendant. After considering the statutory scheme of Chapter 742, we have no trouble summarily disposing as without merit ap-pellee’s contention that under such a construction the statute denies him equal protection and due process under the Florida Constitution, Article I, Section 2. See generally Kendrick v. Everheart, 390 So.2d 53 (Fla.1980).

The post-dismissal order, dated July 2, 1980, awarding attorney’s fees to the defendant under Chapter 742, is reversed.

LARRY G. SMITH and THOMPSON, JJ., concur.

      . The decisions are not totally clear concerning whether attorney’s fees are recoverable only if found to be part of an award of costs. See Randle-Eastern Ambulance Service, Inc. v. Vas-ta, supra, (prohibiting attorney’s fees as recompense to defendant for plaintiffs voluntary nonsuit); City of Hallandale v. Chatios, 236 So.2d 761 (Fla. 1970) (attorney’s fees awardable as costs after notice of dismissal filed in condemnation case); MacBain v. Bowling, 374 So.2d 75 (Fla.3d DCA 1979) (attorney’s fees under § 57.105 awarded as costs after voluntary dismissal); but see Love v. Jacobson, M. D., 390 So.2d 782 (Fla.3d DCA 1980) (seeming to question a § 57.105 fee award as costs); Hayden v. Hayden, 373 So.2d 436 (Fla.3d DCA 1979) (attorney’s fees denied after a voluntary dismissal in a dissolution case without differentiating fees recoverable as costs and those recoverable by contract or statute); Gordon v. Warren Heating and Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976) (implying that attorney’s fees in a mechanic’s lien case were awardable as costs after a voluntary dismissal).


author: RYDER, Judge.

text:
    In re ESTATE of Ingvar O. ROBERG, Deceased
    No. 80-1440.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    John P. Grier, Cocoa Beach, for appellant.
    C. Eugene Jones of Ginsburg, Byrd, Jones & Pflaum, P. A., Sarasota, for appellee.
   RYDER, Judge.

Maude G. Roberg appeals the admission of the will of Ingvar O. Roberg to ancillary administration in Florida, arguing that she should have been permitted to contest the will before admission. We agree and reverse.

Georgia C. Roberg, domiciliary personal representative for the estate of Ingvar Ro-berg in New York, filed a petition in the lower court for ancillary letters of administration to administer real property located in Florida, and served a copy of the petition on Maude G. Roberg as guardian of Brian Roberg, an incompetent. Maude Roberg answered the petition and opposed probate, alleging that execution of the will and codicil was tainted by fraud, duress, mistake and undue influence, and that she was contesting the will in New York. After the New York court considered and rejected revoking probate, the lower court entered an order denying appellant’s motion to deny admission of the will to probate in Florida.

When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lafids located therein as if devised by separate wills. Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940); 80 Am.Jur.2d Wills § 1062 (1975). Thus, the admission of the instant will to probate in New York does not preclude challenge to validity of the will for purposes of disposition of Florida real property.

There is no provision in the ancillary administration statute which specifically indicates the procedure for such a contest. Section 734.102(4) provides “all proceedings for appointment and administration of the estate shall be as similar to those in original administrations as possible.” In an original administration, a will contest must be resolved prior to admission of the will to probate if the personal representative petitioner has served the interested person with a copy of the petition. Section 733.2123, Florida Statutes (1979). Since appellant was served such a copy, and filed a responsive challenge, we hold that the issue below must likewise be decided before admission of the will to ancillary administration.

We REVERSE the order admitting the will for ancillary administration and REMAND for further proceedings consistent with this opinion.

GRIMES, Acting C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    CARTER CONCRETE and CNA Insurance Group, Appellants, v. Arthur L. GRAY, Appellee.
    No. WW-303.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Wendell J. Kiser of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   PER CURIAM.

In the workers’ compensation action below, the- deputy commissioner found that Gray was entitled to temporary total disability benefits, costs, and attorney’s fees. In this appeal, the carrier challenges only the award of attorney’s fees. We reverse that portion of the order.

The deputy determined Gray was entitled to a fee pursuant to Section 440.34(2)(c), Florida Statutes (1979), which permits assessment of a claimant’s attorney’s fee “(i)n a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable.” This was not such a proceeding.

Accordingly, the deputy’s order is reversed insofar as it pertains to the attorney’s fee, and the cause is remanded for proceedings not inconsistent with this opinion.

WENTWORTH, J., LILES, WOODIE A. (Retired), and OWEN, WILLIAM C., Jr. (Retired), Associate Judges, concur.


text:
    William H. HAMMOND, Appellant, v. CITY OF MIAMI, Appellee.
    No. 80-1289.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied April 24, 1981.
    Silver & Levy and Jay M. Levy, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

The final judgment appealed from is affirmed on the basis that: (1) the underlying proceeding before the Retirement Board of the City of Miami seeking accidental disability pension pursuant to Resolution No. 39802 adopted June 20,1968 was quasi-judicial in nature, De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); Bloomfield v. Mayo, 119 So.2d 417 (Fla. 1st DCA 1960), and culminated in an order rendered March 7, 1975; (2) under the then-applicable and governing provisions of Florida Rules of Appellate Procedure 4.1 and 4.5c(l), the order was reviewable within sixty days from rendition; and (3) the ensuing challenge to that order commenced in the circuit court on February 25, 1976 by a complaint for declaratory relief, being more than eleven months after rendition of the administrative order, was untimely and, consequently, the circuit court lacked jurisdiction to entertain the proceeding. Central Truck Lines, Inc. v. Boyd, 106 So.2d 547 (Fla.1958).

Affirmed.


text:
    The EMPORIUM, INC., a Florida corporation, Appellant, v. Cornelius B. JONES, Appellee.
    No. WW-125.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Rehearing Denied April 24, 1981.

      James C. Truett, Tallahassee, for appellant.
    Barry S. Richard, Tallahassee, for appel-lee.
   PER CURIAM.

Emporium appeals from final judgment awarding money damages to appellee, alleging the advance made by Jones, appellee, for the benefit of Emporium, its stockholders and creditors, was not free from fraud and bad faith. We disagree and affirm.

The Emporium, appellant, is a family retail mercantile corporation which has operated in Perry, Florida, since 1930. The majority of Emporium stock is held by ap-pellee’s mother, while appellee is a minority stockholder and has at all times been secretary-treasurer and the director of The Emporium.

In 1976, appellant decided to create a new corporation called The Emporium Men’s and Boy’s Store (EMB). Stockholders of The Emporium each had the same percentage of ownership interest of stock in EMB. Emporium leased the business to EMB and after the merchandise was transferred to EMB by Emporium, EMB executed a note to Emporium for the value of this stock of merchandise. Further, the corporations maintained completely separate sets of books and records and filed separate tax returns for each corporation.

In April, 1978, appellee was notified by a bank which maintained active accounts for both corporations that there was an overdraft in one of the corporate accounts. Apparently, this mistake occurred when a $10,-000.00 deposit made by EMB was credited twice in the passbook presented at the bank with deposits.

After appellee had verified this error, he borrowed $10,000.00 from the Florida National Bank and deposited it into the Emporium account. This money was later transferred from the Emporium account to the EMB account.

Initially, appellee credited himself on the Emporium books with the $10,000.00 deposit in the accounts receivable journal, but later upon advice of a corporate CPA, gave himself a note.

The amended complaint, filed by appellee, asserts that after numerous demands for payment of the loan, appellant has failed and refused to repay. Final judgment was rendered in favor of appellee, awarding him $10,000.00, plus interest and costs.

We cannot agree with appellant’s contention that neither Emporium nor its stockholders benefited from the use of ap-pellee’s advance. The record , is clear that appellee delivered this money to Emporium in good faith with no intention that it be a gift. This argument is supported in the record as Jones was the managing officer and director of both corporations, both corporations were family owned, each of the stockholders had the same percentage of shares in both corporations, Jones made a personal loan from the bank to repay and correct the overdraft, when the money was paid into the corporation Jones had his personal store account credited in the amount of $10,000, and later on the advice of the corporation’s accountant Jones executed a note from the corporation to himself in the amount of $10,000. Clearly, the record does not indicate any fraud or bad faith on the part of appellee in loaning money to Emporium.

Other testimony indicates both corporations were operated much like joint enterprises, that Emporium kept the records and books for both corporation, the books were not balanced until the end of the year, and Emporium bought the merchandise which was later stocked in EMB.

Moreover, when the books were balanced at the end of 1978, the $10,000 loan from appellee was credited back to The Emporium. Certainly, this creates unjust enrichment at the expense of appellee if Emporium is now entitled to keep this money. The mere fact that Emporium has possessed Jones’ money and had the use of it for two years to assist its sister corporation (which had the same ownership) certainly provides a benefit to the corporation and its stockholders. See Pierce v. Scott, 142 Fla. 581, 195 So. 160 (1940).

The order below is AFFIRMED.

McCORD, SHIVERS, and JOANOS, JJ., concur.


text:
    Katheran M. McCARROLL, Appellant, v. Mary REAGAN, State Farm Insurance Company, Sandra Smith Key, and Allstate Insurance Company, Appellees.
    No. 80-376.
    District Court of Appeal of Florida, Second District.
    April 3, 1981.

      Elinor Smith of Hines & Shea, Tampa, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, St. Petersburg, for appellees Mary Reagan and State Farm Ins. Co.
   PER CURIAM.

Plaintiff Katheran M. McCarroll appeals a final summary judgment entered against her in her suit for damages for personal injuries she sustained in an automobile accident in which she was a passenger in an automobile driven by defendant/appellee Mary Reagan, one of appellant’s fellow employees. We affirm.

The issues on this appeal concern the constitutionality and applicability of section 440.11(1), Florida Statutes (1979). That section provides immunity from tort liability to a fellow employee when that employee was acting in furtherance of the employer’s business except when the employee was acting with gross negligence or willful and wanton disregard of the interests of the victim or when the victim and fellow employee were assigned primarily to unrelated work.

Section 440.11(1) has recently been held constitutional by our supreme court. Iglesia v. Floran, 394 So.2d 994 (Fla.1981). Furthermore, the trial court correctly found, after considering the facts in the light most favorable to appellant, that section 440.11(1) was applicable to this case and that there was no genuine issue of material fact that would bring this case within any of the exceptions set forth in the statute.

Accordingly, the final summary judgment is AFFIRMED.

HOBSON, Acting C. J., and BOARD-MAN and CAMPBELL, JJ., concur.


author: RYDER, Judge. GRIMES, Acting Chief Judge,

text:
    Edward J. ALIZIERI and Sharon D. Ali-zieri, husband and wife, Appellants, v. MANATEE COUNTY, Florida, a political subdivision of the State of Florida, for and on behalf of the Manatee County Utilities System, Appellee.
    No. 80-1488.
    District Court of Appeal of Florida, Second District.
    April 3, 1981.

      Robert A. Lee of Wood, Whitesell & Karp, P. A., Sarasota, for appellants.
    Alan H. Prather of Mann & Fay, Chartered, Bradenton, for appellee.
   RYDER, Judge.

Edward J. and Sharon D. Alizieri appeal the dismissal of their complaint for inverse condemnation, alleging that the lower court erred in granting dismissal. We agree and reverse.

Appellants’ complaint alleged their purchase of real property subject to a fifteen foot rear public utility easement and a five foot side easement. Upon inspecting the property, appellants noticed the presence of various public utility buildings. The complaint further alleged that appellee County or its predecessor in interest entered upon the property without authorization or consent and constructed various permanent utility buildings outside of the existing easement. Appellee allegedly ratified the former acts by using the property, and demanded execution of a second easement while refusing to pay for it. Upon these allegations, the lower court granted a motion to dismiss for failure to state a cause of action.

An inverse condemnation consists of a taking of private property for public purposes without payment of full compensation. See Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla.1979). Article X, Section 6, Florida Constitution. We have previously defined “taking” as entering upon private property and devoting it to public use or otherwise informally appropriating it, in such a way as substantially to oust the owner. Edwards Dairy, Inc. v. Pasco Water Authority, Inc., 378 So.2d 866 (Fla. 2d DCA 1979). The complaint below alleges a “taking” by appropriation of private property without any payment of compensation. Thus, the complaint states a cause of action for inverse condemnation. We do not, however, address the ultimate merits of the action below since only allegations are before the court. We also do not comment on appellants’ factual standing to ultimately obtain damages.

REVERSED and REMANDÉD for further proceedings.

OTT, J., concurs.

GRIMES, Acting C. J., concurs specially with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

The key to the appellants’ ability to stay in court at this juncture is their allegation that the county or its predecessor in interest built a portion of the utility buildings outside the easement without authorization. If, however, the facts ultimately show that the buildings were placed outside the easement with the permission of the then-owner of the land (presumably a developer) and that the utilities were later turned over to the county, I doubt if the county’s present use of the buildings would constitute a “taking” of appellants’ land so as to require inverse condemnation. See Florida Power & Light Co. v. Rader, 306 So.2d 565 (Fla. 4th DCA 1975).


author: NESBITT, Judge.

text:
    Willie MONROE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2174.
    District Court of Appeal of Florida, Third District.
    April 3, 1981.

      Bennett H. Brummer, Public Defender, Peter Raben, Asst. Public Defender, and William Liston, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The defendant appeals his adjudication and sentence for: (1) robbery with a firearm contrary to Section 812.13, Florida Statutes (1977) (Count I); and (2) display of a firearm in the commission of a felony in violation of Section 790.07, Florida Statutes (1977) (Count II).

In a two-pronged attack, the defendant claims that he is entitled to a new trial. The defendant’s primary attack is that the state has deprived him of his Fifth and Fourteenth Amendment guaranties under the United States Constitution in its attempt to impeach his alibi defense on cross-examination in that the attempt constituted an impermissible comment upon his right to post-arrest silence. The defendant’s second ground, which he advances in the alternative, is that the double jeopardy clause of the Fifth Amendment to the United States Constitution and Section 9 of the Declaration of Rights of the Florida Constitution forbid conviction on both Counts I and II in that Count II is a lesser included offense of Count I and thus imposition of separate sentences on both counts is forbidden by Section 775.021(4), Florida Statutes (1977).

The defendant was charged with robbery of a service station on June 23, 1978. At trial, he relied on the affirmative defense of alibi. His alibi was that he was at an entirely different location in the company of friends. After having testified on his own behalf, the following exchange occurred between the defendant and the assistant state attorney on cross-examination:

PROSECUTOR: They did not tell you the address of the place you were charged with robbing?
DEFENDANT: No, they said I robbed a filling station on June 23rd dressed up like a woman with a wig and dress on.
PROSECUTOR: What did you tell them when they said that?
DEFENDANT: I said, “Man, you got to be kidding.”
PROSECUTOR: Where were you arrested?
DEFENDANT: Right there by the restaurant on a Friday, [situs of the alibi]
PROSECUTOR: Did the police tell you what date you were alleged to have committed this robbery?
DEFENDANT: Sgt. Baskin told me it was a while back. When they brought me downtown, Paul Richardson told me it was June 23.
PROSECUTOR: Did he tell you what day of the week that was?
DEFENDANT: It was on a Friday.
PROSECUTOR: Did you tell him you could not do that because you were helping out with your auntl [the alibi]
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Sustained.
DEFENSE COUNSEL: We would like to make a motion at side-bar.
THE COURT: You can do it later, Counsel.

It is this exchange to which the defendant points his first prong. Relying upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Willinsky v. State, 360 So.2d 760 (Fla.1978), the defendant contends his Fifth Amendment guaranty against self-incrimination was violated by the above high-lighted question in that the question was a comment upon his post-arrest silence. There is no doubt that any comment by the prosecution upon the accused’s exercise of his right to remain silent in a jury trial, when properly preserved, is reversible error without regard to the harmless error rule. Clark v. State, 363 So.2d 331 (Fla.1978); Barnes v. State, 375 So.2d 40 (Fla.3d DCA 1979).

The defendant urges that the only answer he could have made to the offending question was “no” and that therefore the impermissible inference, that the defendant did not talk, was set loose in the courtroom. Had the question been answered, or the comment improper, we would unhesitatingly agree with defendant. However, in all of the cases examined including the recent decision of Washington v. State, 388 So.2d 1042 (Fla. 5th DCA 1980) the comment was actually made and the offending question was answered. The state aptly points to Pineda v. Florida, 564 F.2d 1163 (5th Cir. 1977), cert. denied, 436 U.S. 909, 98 S.Ct. 2245, 56 L.Ed.2d 409 (1978) where an analogous problem occurred. In Pineda, the defendant claimed constitutional error from questions propounded but also unanswered to which there were sustained objections. We quote extensively from Pineda because there the attempt by the prosecutor to contaminate the defendant in front of the jury was not only admitted but a followup attempt to exploit it occurred as follows:

On cross-examination, the prosecutor asked defendant whether he had told that story at the preliminary hearing. Before defendant could answer, the question was objected to. The judge sustained the objection. Since the determination of this case hinges on those questions, we set out that line of cross-examination in full:
[PROSECUTOR]: . . . Sir, do you remember appearing at the preliminary hearing on March 26, 1975?
[DEFENDANT]: Right here.
[PROSECUTOR]: On this floor?
[DEFENDANT]: Yes.
[PROSECUTOR]: Were you represented by counsel at that time?
[DEFENDANT]: The first time the attorney was not present.
[PROSECUTOR]: The time they had the hearing were you represented by an attorney?
[DEFENDANT]: Yes.
[PROSECUTOR]: Did you tell anybody this story that you told the jury today at that time?
[DEFENSE COUNSEL]: Objection. It is a highly improper question.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I move for a mistrial, your Honor, in that the question
THE COURT: I will reserve ruling on it.
[PROSECUTOR]: You never told the story to anybody except today?
[the attempted exploitation]
[DEFENSE COUNSEL]: I repeat the objection.
THE COURT: Sustain the objection.
[PROSECUTOR]: No further questions.
The prosecutor admitted to the judge, out of the presence of the jury, that his intent was to call the jury’s attention to the fact that defendant was telling his story for the first time at trial. But his intent is irrelevant for his design was frustrated: the fact that defendant did not testify at the preliminary hearing was never elicited.
We are not dealing with a comment by the prosecutor. Rather we have a question by the prosecutor, to which an objection was made and sustained, and which was never answered by the defendant. The question, by its very nature, left open the answer. It could have been answered either “yes” or “no.” The question alone was not so suggestive as to amount to a comment on defendant’s silence. See, United States v. Helina, 549 F.2d 713, 718 (9th Cir. 1977).

564 F.2d at 1164-1165. Accord, United States v. Serrano, 607 F.2d 1145, 1151 (5th Cir. 1979).

In this case, we do not commend the prosecutor’s question of the defendant but, like Pineda v. Florida, supra, the design was frustrated. And, as in Pineda, in spite of the defendant’s conclusions to the contrary, we find that the offending question was not so suggestive as to amount to a comment on the defendant’s silence. The reasonable and natural inferences flowing from the question would not suggest to the jury anything about the defendant’s silence or lack thereof. The only possible connective would be to the defendant’s previous testimony on direct examination for which we cannot fault the state.

The state argues, in the alternative, that because of the defendant’s testimony there was a strong inference that he had told police his alibi and it was therefore proper for the state to inquire into it because the defendant had opened the door. See, United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975). We need not and do not address the state’s counter position in that the first prong of the defendant’s attack misses its mark.

The second prong of defendant’s appeal has merit. Since the underlying offense of display of a firearm in the commission of a felony is an essential element in the offense of robbery with a firearm, the defendant cannot be convicted and sentenced for both. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Pinder, 375 So.2d 836 (Fla.1979); Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980), review granted, (Fla.1981) (Case no. 59,893). Consequently, the defendant’s conviction and sentence on Count II, display of a firearm in the commission of a felony, are reversed and vacated. In all other respects, the defendant’s conviction and sentence on Count I, robbery with a firearm, are affirmed.

In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) and Albernaz v. United States, -U.S. -, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), the United States Supreme Court held that the imposition of consecutive sentences upon a defendant for offenses which arise from the identical factual transaction does not violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. Because of the Florida Supreme Court’s decisions, both in Mahaun v. State, supra, and State v. Pinder, supra, no inferi- or court in Florida is privileged to rule to the contrary.

In light of the unequivocal pronouncements by the United States Supreme Court in Whalen and Albernaz, and to afford the Florida Supreme Court an opportunity to re-visit its decisions in Mahaun and Pinder, we certify to the Supreme Court of Florida the question as to whether it desires to continue to accord Article I, Section 9 of the Florida Constitution, regarding double jeopardy, a more restrictive construction than that given the double jeopardy clause of the United States Constitution.

Affirmed in part and reversed in part with directions.


author: McCORD, Judge.

text:
    PAN AMERICAN WORLD AIRWAYS, INC., and Travelers Insurance Company, Appellants, v. Alfred FRANCHINA, Appellee.
    No. SS-158.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s order awarding appellee permanent total disability benefits as a result of a January 10,1978, industrial accident in which appellee injured his lower back. We affirm in part and reverse in part.

After his industrial accident, appellee never returned to work. His treating physician gave him a 10% permanent partial disability rating and restricted his activities substantially. Appellee himself testified that he is very limited in his physical abilities in that he has constant pain in his back and right leg, he cannot walk, stand, or sit for more than a few minutes at a time, he must constantly change his position, and he has difficulty concentrating.

On July 3, 1978, while conducting a job search, appellee was involved in a subsequent unrelated noncompensable automobile accident in which he suffered a cervical sprain which, according to his treating physician, was not of a permanent nature.

In Paragraph 10 of his order, the deputy commissioner stated:

On the basis of the foregoing facts, it is my determination that claimant has suffered permanent total disability based upon diminution of wage earning capacity as a result of his industrial accident and injury of January 10, 1978.

However, in Paragraph 12 of the order, the deputy commissioner stated:

Because the automobile accident was a subsequent intervening accident, the injuries sustained from it must be apportioned from the disability award. After considering the medical evidence, the testimony of the claimant and my observations of him, I conclude that 25% of the award must be apportioned to the subsequent intervening automobile accident. ..

The deputy commissioner thereupon awarded appellee benefits for a 75% permanent total disability.

Appellants assert that the deputy commissioner erred in finding appellee to be permanently totally disabled by, in effect, merging the industrial accident with the automobile accident and thereafter apportioning damages. Appellants contend that no evidence of merger was presented. Appellants argue that the deputy commissioner obviously found that the industrial accident resulted in appellee being 75% permanently disabled, with the automobile accident being the cause of the remaining 25% disability. Therefore, at most, the proper award would have been a 75% permanent partial disability.

In their second point on appeal, appellants contend that no competent substantial evidence supports the deputy commissioner’s statement that appellee is permanently totally disabled. He suffered only a 10% impairment, according to his doctor’s testimony, and his job search was inadequate.

On cross-appeal, appellee asserts that the deputy commissioner erred in apportioning out 25% of the permanent total disability award on the basis of the subsequent automobile accident.

We agree with appellants and appel-lee that the deputy commissioner erred in finding, in one paragraph of his order, that the industrial accident caused permanent total disability and in declaring in another paragraph of the order that 25% of the disability was due to the unrelated, noncom-pensable automobile accident. The deputy commissioner appears to have applied reverse merger which is not permissible. See Riverside Baptist Church v. O’Hara, IRC Order No. 2-2727, 9 FCR 168, cert. denied 317 So.2d 82 (Fla.1975). Therefore, we reverse his finding of a 75% permanent total disability and remand the cause for a determination of the degree of permanent disability caused by the industrial accident alone, without consideration of the automobile accident.

In light of the above remand, we decline to rule on appellants’ Point II relating to the sufficiency of the evidence to support a permanent total disability award. We have considered appellant’s third point and find it to be without merit.

Based on the medical testimony in the record, the deputy commissioner found that appellee is entitled to palliative care in the future. However, he ordered employer/carrier to furnish appellee “such palliative remedial treatment, care, ...” as he may require. Because the medical testimony supports only a finding of the need for palliative care and because the deputy commissioner clearly has found that appellee is, to some degree, permanently disabled, we direct that the word “remedial” in Paragraph 2 on page 13 of the deputy commissioner’s order be stricken.

Affirmed in part, reversed in part, and remanded for reconsideration.

MILLS, C. J., and THOMPSON, J., concur.


author: SMITH, Judge. ERVIN, Judge,

text:
    Honesto ALEGRE et al., Appellants, v. Larry C. SHURKEY et al., Appellees.
    No. UU-433.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Chalmers H. Barnes, of Barnes & Barnes, Jacksonville, for appellants.
    Emory P. Cain, Jacksonville, for appel-lees.
   SMITH, Judge.

The trial court dismissed appellants’ complaint, for failure to state a cause of action, in which they sought damages for injuries received by their daughter in falling from a type of playground equipment known as “monkey bars” placed by appellees upon their property, and which was being used by appellants’ minor child with the implied permission of appellees, since the child was in the yard playing with appellees’ child.

The complaint is in two counts, the first seeking recovery upon a theory of negligence in allowing the ground surface under the monkey bars to become hard-packed, and in failing to provide some cushioning surface for the prevention of injuries to children who might fall while playing on the monkey bars. The second count alleges substantially the same facts, but adds additional allegations based upon the attractive nuisance doctrine. Both counts contain essentially the same allegations with respect to the negligence of appellees. Paragraph 5 of count one provides:

5. Defendants Shurkey were negligent by failing to provide a surface under the monkey bars which could possibly have absorbed the impact of a child falling from a height of six to seven feet. Defendants knew or should have known that a packed earth surface presents a serious hazard for children who might fall while playing on the monkey bars. Defendants knew or should have known that falls from this type of playground equipment are a regular occurrence and defendants should therefore have provided some cushioning surface underneath the monkey bars.

As to Count One, appellants’ argument focuses primarily, upon a decision from the New York courts, Hunt v. Board of Education of Schenectady, 43 App.Div.2d 397, 352 N.Y.S.2d 237 (1974), in which the appellate court reversed the trial court’s dismissal of the complaint, holding that a jury question was presented on the issue of whether or not the defendant school was negligent in placing a set of “monkey bars” over an artificially hardened, “black top” surface. However, we consider that the facts in this case are distinguishable from those in Hunt, and moreover, we further conclude that a determination of this question in Florida is controlled by Hillman v. Greater Miami Hebrew Academy, 72 So.2d 668 (Fla.1954).

In Hillman, the injured child was playing on monkey bars constructed on the playground of a private school. The plaintiffs contended that the monkey bar equipment in question was negligently maintained, in that it was constructed so that it extended over the trunk of a coconut palm tree, and that the defendant had failed to keep it supervised by one competent to look after children of tender age to prevent them from falling from it. In affirming dismissal of the complaint for failure to state a cause of action, the court said (Id. at 669):

The vice of the complaint in question consisted in the fact that it sought to make appellee an insurer of the safety of minor children who used its playground equipment while the law contemplates that it furnish them a reasonably safe place to play commensurate with their knowledge and impulses. There is no allegation in the amended complaint that the monkey bar contained latent defects, that it was negligently constructed or operated or that there was any present danger that one of tender years could not readily comprehend. It was approved standard playground equipment and no amount of superintendence would have prevented the accident, (citations omitted)

We consider that the facts alleged in Hillman present an even stronger case than this one, and the trial judge correctly held that Count One was insufficient to state a cause of action. See also Elmore v. Sones, 140 So.2d 59 (Fla. 2nd DCA 1962); and Solomon v. City of North Miami Beach, 256 So.2d 399 (Fla. 3rd DCA 1972).

As to Count Two, the dismissal was correct because the complaint does not specifically allege, nor can it reasonably be inferred from facts pleaded, that the monkey bars presented an inherently dangerous condition, or a trap without which the attractive nuisance theory does not apply. See Edwards v. Maule Industries, Inc., 147 So.2d 5 (Fla. 3rd DCA 1962).

AFFIRMED.

SHIVERS, J., concurs. ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring in part and dissenting in part.

While I agree with the majority in affirming the dismissal of Count II, I must respectfully take issue with the majority’s affirming the dismissal of Count I, which alleged, in effect, that Annette Alegre was lawfully on the premises by invitation, and that while there she was injured by falling from monkey bars onto hard-packed earth, a condition created by defendants which they should have known was dangerous. It was not alleged that Annette, because of her age, was unable to comprehend the dangerousness of the condition.

On first impression, the majority’s reliance on Hillman v. Greater Miami Hebrew Academy, 72 So.2d 668 (Fla.1954), would appear controlling. Yet, it is difficult for me to determine on what basis the Hillman court decided the action before it was deficient. Did the court hold only that it was essential for the plaintiffs to allege that a child of tender years could not have comprehended the patent, dangerous condition of monkey bars perched from the trunk of a palm tree? Or did the court consider that because the plaintiff did not allege the existence of a latent defect in the equipment, the child should have been able to see what was there to be seen by the ordinary use of his senses, and if it was there to be seen, it was therefore deemed in law to have been seen?

If Hillman restricted its decision to holding only that the complaint was wanting due to its failure to allege the child’s lack of awareness, it would seem that the complaint could have been amended to permit the plaintiffs to make such allegations. One case, involving an attractive nuisance, Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla. 4th DCA 1967), quashed on other grounds, 216 So.2d 221 (Fla.1968), has recognized that a complaint containing a similar defect could be amended so that the necessary facts might be alleged. It has long been acknowledged that a child of tender years may be incapable of comprehending a patent risk and that a greater degree of care may be owed to the invitee-child by the business owner than to an adult of normal intelligence. See Burdine’s, Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941); City of Jacksonville v. Stokes, 74 So.2d 278 (Fla.1954); McCain v. Bankers Life & Casualty Co., 110 So.2d 718 (Fla. 3d DCA 1959). This rule was an exception to the patent danger doctrine, in effect at the time Hillman was decided, which stated that no duty was owed by the owner or possessor of land to an invitee in situations where the danger was obvious, reasonably apparent, or as well known to the person injured as it was to the owner or occupier. Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366 (1942); Hall v. Holland, 47 So.2d 889 (Fla.1950). And, those cases involving the exception generally held that the question of whether or not the child comprehended the risk was one for decision by a jury — not a judge. E. g. Burdine’s, Inc. v. McConnell, supra; McCain v. Bankers Life & Casualty Co., supra. Even more significantly, it has been recognized that a three-year old child is incapable as a matter of law of conduct amounting to contributory negligence. Winner v. Sharp, 43 So.2d 634 (Fla.1949).

If, however, Hillman required the plaintiffs to allege that the hazard was latent, I think it would have been impossible for the plaintiffs either in Hillman or in the case at bar to have made such allegations. The injury suffered by the child, as stated in the complaint before us, was attributable not to a defect hidden from the eye of one of normal intelligence, but was one rather attributable to the defendants’ conduct — defendants who knew or should have known that the condition, the placement of elevated monkey bars directly above a hard, earth packed surface, presented a serious hazard to children playing on such equipment. Yet, I seriously doubt that a plaintiff-invitee is now required to plead that a latent defect caused his injuries. The no-duty doctrine, barring recovery if the danger was open, has now, in my judgment, been superseded by the adoption of comparative negligence in Florida by Hoffman v. Jones, 280 So.2d 431 (Fla.1973), later amplified by Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), as to assumption of the risk. Blackburn held that the affirmative defense of implied secondary assumption of risk is merged into the defense of contributory negligence, and that principles of comparative negligence apply in all cases where contributory negligence was formerly asserted. Thus, in any situation whenever implied secondary assumption of the risk is now raised, the reasonableness of the plaintiffs conduct in meeting a patent risk is an issue to be determined by the jury in its apportionment of the respective parties’ negligence. Id. at 293. Yet, Blackburn also states that if assumption of risk has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by the adoption of the comparative negligence doctrine. Id. at 289.

As Blackburn observes, assumption of risk involves two separate and distinct doctrines: primary and secondary assumption of risk. Primary assumption of risk is not an affirmative defense, but is a way of expressing the idea that if the defendant owes no duty to the plaintiff, he cannot be negligent, whereas secondary assumption of risk is an affirmative defense to an established breach of duty, and may be raised only when the plaintiff has voluntarily encountered a known and appreciated risk. Id. at 290-92. See also 2 F. Harper & F. James, Law of Torts, § 21.1 (1956). Certainly then, if the no-duty doctrine remains unaffected by Blackburn, an invitee simply cannot recover for injuries proximately caused by an obviously dangerous condition because no duty was owed to him by the occupier or landowner.

Nevertheless, an examination of those cases antedating the adoption of comparative negligence in Florida reveals no consistent pattern in their decisions. Many intertwined the separate doctrines of no-duty and assumption of risk in their reasoning. See Matson v. Tip Top Grocery Co., supra; Miller v. Shull, 48 So.2d 521 (Fla. 1950); Frederick’s Market, Inc. v. Knox, 66 So.2d 251 (Fla.1953). Others, on the contrary, have treated the obviousness of the danger as a question to be resolved by a jury and have permitted the cases to be tried under the usual theories of negligence and contributory negligence. See Jenkins v. Brackin, 171 So.2d 589 (Fla. 2d DCA 1965); Bars v. Morrison-Knudsen Co., 222 So.2d 445 (Fla. 4th DCA 1969); Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965). The latter cases, in effect, focus attention upon the knowledge of the condition which the landowner had, or with the exercise of reasonable care he should have had, notwithstanding the patent nature of the condition that ostensibly the invitee— had he been aware — should have perceived. If those cases had been decided on a no-duty basis, there would be no issue of negligence to be considered by a jury since clearly, in the absence of duty, there can be no negligence.

While I have found no Florida cases which have explicitly adopted Section 343A of the Restatement (Second) of Torts (1965), it is possible that those cases which failed to apply the no duty doctrine were influenced by it. Section 343A superseded the provisions of Section 340 to the original Restatement. Comment f to Section 343A explicitly states that the occupier is not absolved from any duty owed to an invitee merely because the risk is patent. Note the following: “[T]he fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk .... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” An evergrowing number of cases have adopted the provisions of Section 343A. See cases cited, Annot., 33 A.L. R.3d 230, 254-262, § 4[c] (1971). Additionally, an evergrowing number of Florida district courts of appeal opinions post-dating Hoffman and Blackburn have held that the obviousness of a dangerous condition is an issue of comparative negligence and is not an absolute bar to either an invitee’s or a tenant’s recovery. See Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980); Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980); Grenier v. Central Bank and Trust Co., 391 So.2d 704 (Fla. 3d DCA 1980); Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980).

A similar conclusion was reached by a recent decision of the Texas Supreme Court, holding that the no-duty doctrine did not survive a former opinion of the court abolishing the doctrine of voluntary assumption of the risk. See Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). In so deciding, the court noted that voluntary assumption of risk (volenti non fit in-juria) involved two of the same elements as the no-duty doctrine: knowledge and appreciation of the risk; that because both doctrines were dependent upon the obviousness of the danger, both were inseparably intertwined, and once the volenti principle was abolished, the other necessarily collapsed. The court concluded that the reasonableness of the invitee’s conduct would be determined under principles of contributory negligence, and as to cases controlled by the comparative negligence statute (Tex. Rev.Civ.Stat.Ann. art. 2212a), one who is contributorily negligent would nevertheless be entitled to have his negligence compared with that of the other participants to the event. Id. at 517.

Given the Texas court’s analysis of the two doctrines, it is difficult to understand how no-duty may reasonably be said to endure in Florida. While Blackburn did not abolish the volenti doctrine in its entirety, but only one of its categories as a separate defense, implied secondary assumption of risk, the elements inherent in implied primary assumption of risk are common also in implied secondary assumption of risk: the voluntariness of the exposure to the danger and the plaintiff’s knowledge and appreciation of it. 23 Fla.Jur., Negligence, § 70 (1959). Moreover, the elements of knowledge and appreciation are essential to the application of the no-duty doctrine. Cf. Matson v. Tip Top Grocery Co., supra. Since the doctrinal underpinnings of implied secondary assumption of the risk have been eroded as a separate defense, I fail to see the logic of any theory espousing no-duty as a bar to an injured invitee’s right of action simply because he should have perceived the risk.

Nearly a year ago, in my special concurring opinion to Bennett v. Mattison, supra at 876, involving also a patent, obvious danger, I wrote that “[t]his is a murky area of the law .. .. ” The majority’s affirmance of the order below, and the opinions following Hoffman and Blackburn which persevere in applying no-duty, e. g., Kessler v. Gumenick, 358 So.2d 1167 (Fla. 3d DCA 1978); Vermont Mut. Ins. Co. v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978); Ball v. Ates, 369 So.2d 1023 (Fla. 1st DCA 1979), all serve to reinforce my belief. Unless, however, no-duty remains alive and well, the above decisions cannot be squared with Blackburn’s rule of merger.

If the effect of Blackburn is as I believe it to be, then in all cases in which the obviousness of the danger is asserted as a defense, the reasonableness of the plaintiff’s conduct in confronting the risk should now be determined by a jury — not a judge. Until the Supreme Court clarifies the issue, we apparently will continue to have some cases decided without benefit of a jury on the basis of no-duty, while others will be tried by juries under theories of negligence and comparative negligence.

      . While the child’s status would normally be that of a licensee — not an invitee, see Sections 330 and 332, Restatement (Second) of Torts— Wood v. Camp, 284 So.2d 691 (Fla.1973), has eliminated any distinction between invitees and invited licensees, applying to both the same standard of reasonable care owed by a landowner to invitees.

      . According to Dean Page Keeton, such an approach is wide-spread among many courts. He states:
      The actual result reached in many cases is inconsistent with the notion either that the occupier’s duty is any way limited other than by the requirement of negligence or that there is such a defense as assumption of risk or volenti non fit injuria which is distinct from contributory negligence. Often in those instances there is no discussion either of assumption of risk or of the necessity for a breach of duty, the court being content to say that there was evidence sufficient to justify the findings of the jury on the issues of negligence and contributory negligence. Those results can be taken as some indication of dissatisfaction with the idea that a non-negligent customer should be denied relief simply because he chose to encounter a known danger caused by the occupier’s negligent conduct. It is safe to say that in many such instances the defense argued the absence of any duty but the judge who wrote the opinion chose to ignore a discussion of the problem.
      Keeton, Assumption of Risk and the Landowner, 22 La.Rev. 108, 114 (1961). (footnotes omitted)

      . Section 343A(1) provides:
      A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness, (emphasis supplied)

      . Section 340 merely reworded the no-duty doctrine, and provided: “The possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by any dangerous condition thereon.if they know of the condition and realize the risk involved therein.”

      .The volenti doctrine covers three types of cases: (1) Those in which the plaintiff agrees expressly or impliedly to run the risk of harm; (2) those in which because the plaintiff knows of the danger, the defendant has done no wrong in causing it, and (3) those in which because the plaintiff knows of the danger, his act in voluntarily exposing himself to it is an act of contributory negligence and deprives him of the action. Salmond, Torts, 43 (8th ed. 1934).

      . By analogy, the inconsistency of the various courts’ approaches to slip and fall cases was aptly commented upon by Professor Green:
      Courts are sometimes inclined to take the case into their own hands and direct a verdict or grant judgment n. o. v. They can, of course, do this on the basis of contributory negligence as a matter of law, but now and then a court prefers to base its judgment on assumption of risk. This is done on the basis that if the danger is open and obvious the defendant owed the plaintiff no duty. This is incompatible with good theory if in fact there was a duty to make the premises reasonably safe for the customer and the shopkeeper negligently failed to do so. In such a case the victim’s conduct was simply contributing. It seems a contradiction in terms to say the shopkeeper owed the plaintiff no duty. Nevertheless some courts prefer to express their decision in terms of no duty and assumption of risk. It is believed they do so in order to escape criticism for taking the contributory negligence issue away from the jury and thus invading the jury’s function. Doctrinal semanticism serves their psychological reaction.
      Green, Assumed Risk as a Defense, 22 La.L. Rev. 77, 85 (1961).


author: THOMPSON, Judge.

text:
    Paula K. SMITH, Appellant, v. Samuel A. SMITH, Jr., Appellee.
    No. WW-245.
    District Court of Appeal of Florida, First District.
    April 6, 1981.

      Ferrin Campbell, Sr., Crestview, for appellant.
    Patricia S. Warren, Fort Walton Beach, for appellee.
   THOMPSON, Judge.

This is an appeal from a Final Judgment which dissolved the marriage between the parties herein. The appellant (“the wife”) first argues that the trial court abused its discretion by failing to grant her awards of lump sum and rehabilitative alimony. However, after carefully considering the briefs of counsel and the record herein, we have determined that the trial court did not abuse its discretion, and we affirm the denial of alimony for the wife. See Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980).

The wife also asserts that the trial court erred by placing certain restrictions upon her social activities. We agree and reverse on this point.

In pertinent part, Paragraph Five of the Final Judgment states that the wife “shall not have [a certain gentleman] nor any other men to whom she is not related on the premises of the residence owned by [the husband] for social reasons.” [sic] The record shows that the residence owned by the husband is the former marital home. The wife was awarded the exclusive use and possession of this home for a specified period of time, while the husband retained his ownership of the home.

In effect, the trial court has ruled that the wife may not have any unrelated men visit her on a social basis at her home. The husband argues that the purpose of this ruling is to protect the parties’ two minor children, who will be in the wife’s custody. However, the trial court made no such finding, nor is this portion of the court’s prohibition against unrelated male social visitors contingent upon the presence of the children at the home. Accordingly, the trial court’s ruling, as set out above, is over-broad, see Draper v. Draper, 1981 Fla.L.W. 146 (Fla.2d DCA, opinion filed Dec. 24, 1980), and it represents “an improper attempt to regulate the private life of the . . . wife.” Wambst v. Wambst, 391 So. 2d 375 (Fla.3d DCA 1980).

Paragraph Five of the Final Judgment also provides that the wife is not “allowed to have any men to whom she is not related visit in her residence or at [certain riverfront property] while the children are present.” The record shows that the residence referred to is the same residence mentioned above, while the riverfront property is a fishing camp which is now owned by the parties as tenants in common.

In effect, the trial court has ruled that the wife may not have any unrelated men visit her on a social basis at her home or at her fishing camp, while the children are present. However, this ruling was made without the required finding that unrelated male visitors would adversely affect the children’s welfare. See Draper, 1981 Fla.L.W. at 146. See also Trylko v. Trylko, 392 So.2d 1034, 1035-36 (Fla.2d DCA 1981). Moreover, there must be competent substantial evidence showing that the wife’s social contact with unrelated male visitors at her home or fishing camp would adversely affect the children if they were present. See Trylko, 392 So.2d at 1035-36; Draper, 1981 Fla.L.W. at 313. Such evidence does not appear in the record herein. Cf. Hack-ley v. Hackley, 380 So.2d 446 (Fla.5th DCA 1979); Dinkel v. Dinkel, 322 So.2d 22, 23-24 (Fla.1975).

We reverse those portions of Paragraph Five that were discussed above. In doing so, we note that “[i]f, after an award of custody, a custodial parent engages in conduct or associations that adversely affect the minor children, the court has continuing jurisdiction to enter appropriate orders to protect [those] children.” Draper, 1981 Fla.L.W. at 146.

LARRY G. SMITH, J. and OWEN, WILLIAM C., Associate Judge (Ret.), concur.


text:
    B. G. K. CORPORATION, a Florida Corporation, d/b/a Arthur Murray Studio, Appellant, v. Daniel J. SULLIVAN, Appellee.
    No. XX-477.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Brent M. Turbow, Jacksonville, for appellant.
    Maurice T. Atkins, Jacksonville, for ap-pellee.
   ORDER

PER CURIAM.

Because there was no court reporter in attendance at the trial, appellant submitted a statement of the evidence pursuant to Rule 9.200(b)(3), Fla.R.App.P. Appellee’s trial counsel signed the statement, stating that defendant (appellee) had no objections to the statement and proposed no amendments. The statement was then submitted to the trial court for approval. The trial court refused to sign the statement.

Appellant now requests this Court to dispense with the requirement of court approval since the parties are in agreement as to the evidence presented.

When an appellant submits a statement of the evidence pursuant to Rule 9.200(b)(3) and appellee states that he has no objection and offers no amendments, the statement is equivalent to a stipulated statement under Rule 9.200(a)(3) and no longer requires “settlement and approval” pursuant to Rule 9.200(b)(3), Fla.R.App.P.

In Kuenstler v. Andreasen, 386 So.2d 896 (Fla. 1 DCA 1980), we discussed the duties of the appellee and the trial court under Rule 9.200(b)(3). We stated that the trial court should “act as an arbiter of any factual dispute between the parties”. In the instant case, there were no disputes for the trial court to settle and trial court approval became unnecessary.

The statement of the evidence shall be filed with the clerk of the lower tribunal and shall be included in the record on appeal. .Time is extended for service of the index to the record on appeal to and including thirty (30) days from the date of this Order. Appellant’s initial brief shall be served no later than twenty (20) days thereafter.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Jon Michael LUND, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2229.
    District Court of Appeal of Florida, Third District.
    April 6, 1981.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   SUBSTITUTED OPINION

PER CURIAM.

The defendant appeals from an order which revoked his probation and imposed the remaining term of his sentence. Because we find a basis supported by the record to warrant revocation, that feature of the order is affirmed. Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978). In imposing sentence, the court indicated that the defendant was to be given credit for time served but did not specify the amount of time that was to be credited against his sentence as expressly required by Section 921.161(1), Florida Statutes (1979); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978). A proper application of Section 921.161(1), supra, mandates that the defendant be given credit for all time served. Baker v. Wainwright, 327 So.2d 8 (Fla.1976); Gallagher v. State, 300 So.2d 299 (Fla. 4th DCA 1974). However, a defendant, being held on numerous charges is not entitled to have credit for jail time pyramided by being given credit on each sentence as he awaits disposition of multiple and separate charges or cases. Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

For the foregoing reasons, the order revoking the defendant’s probation is affirmed but the sentence is reversed and remanded for proper sentencing.

Affirmed in part and reversed in part with directions.


text:
    STEWART-DECATUR SECURITY and Sentry Insurance Company, Appellants, v. Dale H. KROPP, Appellee.
    No. TT-401.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Bernard J. Zimmerman and Jose R. Rodriguez, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding temporary total and permanent partial disability benefits to appellee/claimant. Appellee has raised one point on cross-appeal. We affirm in part and reverse in part.

On June 9, 1978, the 60-year-old appellee injured his back in an industrial accident. Although he had suffered various injuries to his arm, foot, and back prior to the 1978 accident, he was able to maintain jobs involving heavy physical labor. His treating physician, Dr. Seig, testified by deposition that appellee reached maximum medical improvement on January 10, 1979, and sustained a 27% permanent partial impairment of the body as a whole, including the impairments resulting from the previous injuries which were not disabling prior to the 1978 accident. Dr. Seig testified that ap-pellee was temporarily totally disabled during three periods of hospitalization from June 1978 until January 1979 but that he was only temporarily partially disabled for the remaining time during that period.

With no evidence of a work search or an effort to return to work at any time, the deputy commissioner concluded that appel-lee was temporarily totally disabled during the entire period from June 1978 through January 1979 and awarded benefits accordingly. He further concluded that appellee sustained a 50% permanent partial disability based on loss of wage-earning capacity. Appellants assert that those findings are error. We agree.

In the absence of medical testimony of temporary total disability during the entire period from June 1978 through January 1979 and in the absence of evidence of an effort to return to work during that period, competent substantial evidence does not support the deputy commissioner’s finding of temporary total disability. Compare Martin Marietta Corp. v. Johnson, 7 FCR 355, cert. den. 283 So.2d 557 (Fla.1973), and Monex Corporation v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980). Further, since the only medical testimony indicated a 27% permanent partial disability and since no evidence of a work search was presented, the deputy commissioner erred in finding an increased disability based on loss of wage-earning capacity. Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978). Therefore, we reverse the finding of temporary total disability as to the entire period from June to January and remand for a determination of the proper periods of temporary total disability which are supported by the evidence. We also reverse the finding of 50% permanent partial disability and direct that an award of 27% permanent partial disability be entered in lieu thereof, such being the maximum permanent disability rating which is supported by the evidence.

We affirm the deputy commissioner’s denial of appellants’ claim for apportionment. Competent substantial evidence supports the deputy commissioner’s finding that appellee’s pre-existing disabilities had not manifested themselves prior to the 1978 accident and, therefore, apportionment would not be proper in this case. See Stephens v. Winn-Dixie, Inc., 201 So.2d 731 (Fla.1967).

Appellants contend that the deputy commissioner erred in awarding attorney’s fee's to appellee’s attorney. We reverse and remand on this question for reconsideration in light of the changes which will be made in appellee’s award.

As to appellant’s contention on cross-appeal that the deputy commissioner should have found him permanently totally disabled, based on his age, limited education and employment history, competent substantial evidence supports the deputy commissioner’s denial thereof.

Affirmed in part, reversed in part, and remanded for reconsideration in light of this opinion.

SHIVERS and JOANOS, JJ., concur.


text:
    Timothy Ted COOPER, a/k/a James Cort, Appellant, v. STATE of Florida, Appellee.
    Nos. WW-396, WW-397.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Michael E. Allen, Public Defender, and Carl S. Mcginnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.