author: GRIMES, Judge.

text:
    James M. BERNARD, Jr., by and through his mother, natural guardian and next friend, Roberta Bernard, and Roberta Bernard, individually, Appellants, v. KEE MANUFACTURING COMPANY, INC., Appellee.
    No. 80-845.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1981.

      Larry Klein, West Palm Beach, and Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellants.
    Sheldon J. Gensler, Sarasota, for appellee.
   GRIMES, Judge.

This appeal considers the circumstances under which a company which purchases the assets of another company and continues its business is liable for injuries caused by a defective product manufactured and sold by the predecessor company.

On August 28, 1976, James M. Bernard, Jr., a minor, received injuries from a lawnmower manufactured and sold in 1967 by Flechas J. Kee d/b/a Kee Manufacturing, Inc. On April 3, 1972, Kee Manufacturing Company, Inc., a corporation chartered three days earlier, purchased the assets and business of Flechas J. Kee for cash. The corporation did not contractually assume the old company’s liability. Following the sale, Mr. Kee retired from the lawnmower business. He retained no interest whatsoever in the new company. Likewise, the owners of the new company had no interest in Mr. Kee’s business until the purchase of his assets.

Kee Manufacturing Company, Inc., continued manufacturing lawnmowers at the same plant and kept some of Mr. Kee’s nonmanagement employees. It continued the brand name of Kee Mowers and used the same customer list. The logos remained much the same, and there was never any indication in the printed material to indicate that a new company had taken over. In fact, the new company’s brochure stated that it had been manufacturing lawnmowers since 1948. The new company also continued to supply parts for mowers manufactured by the old company, but it discontinued the model of lawnmower which injured Mr. Bernard.

Mr. Bernard and his mother sued Kee Manufacturing Company, Inc., for damages arising out of the accident. The complaint was grounded in negligence, strict liability and implied warranty. In a separate suit, they sued Mr. Kee and the retailer which had sold the lawnmower. Following discovery, Kee Manufacturing Company, Inc., obtained a final summary judgment. The plaintiffs have brought this appeal from that judgment.

Traditionally, when a company purchased the assets of another company, it was not obligated for the debts of the selling company unless one of the following circumstances existed:

(1) The purchaser expressly or impliedly agrees to assume the debts of the seller.
(2) The transaction amounts to a consolidation or merger of the seller and purchaser.
(3) The purchasing company is a mere continuation of the seller.
(4) The transaction is consummated fraudulently in order for the purchaser to escape liability for the seller’s debts.

15A W. Fletcher, Cyclopedia of the Law of Private Corporations § 7122 (Perm. ed. M. Wolf 1967).

Until recently, these principles have also governed the liability of the successor company for injuries caused by a defective product manufactured by its predecessor. Annot, 66 A.L.R.3d 824 (1975). The first move toward extending the successor’s obligation in the products liability area came when some courts began to construe more liberally the exceptions pertaining to de facto mergers and continuity. Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976); Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974). Finally, in Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977), the Supreme Court of California, faced with a case which would not fit within one of the recognized exceptions, established a new rule for successor liability. The court held that a party which acquires the manufacturing business of another and continues the output of its line of products becomes liable for injuries caused by defects in units of the same product line manufactured and distributed by the predecessor entity. The court gave as reasons for its rule:

(1) The virtual destruction of the plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being enjoyed by the successor in the continued operation of the business.

19 Cal.3d at 31, 560 P.2d at 9, 136 Cal.Rptr. at 580.

Some courts have declined to more broadly interpret the four original exceptions to the limitation on liability of a successor company simply because defective products were involved. McKee v. Harris-Seybold Co., 109 N.J.Super. 555, 264 A.2d 98 (1970), aff’d, 118 N.J.Super. 480, 288 A.2d 585 (1972); Hartford Accident & Indemnity Co. v. Canron, Inc., 43 N.Y.2d 823, 373 N.E.2d 364, 402 N.Y.S.2d 565 (1977). Others have flatly rejected the product line theory advanced in Ray. Leannais v. Cincinnati, Inc., 565 F.2d 437 (7th Cir. 1977); Hernandez v. Johnson Press Corp., 70 Ill.App.3d 664, 26 Ill.Dec. 777, 388 N.E.2d 778 (1979). Thus, the court in Leannais said:

The record here contains not the slightest indication that Wisconsin courts have created, or would create, such a far-reaching exception to the non-liability of asset purchasers, so long the basis of economic decisions by its citizens. It is on occasion absolutely necessary, if justice be done, for courts to “legislate” within the “interstices” of a statute, or by analogy to other laws and judicial precedents. In recent years, for a variety of reasons, many have thought it necessary to turn to the courts in search of solutions to social problems. Courts are ill-equipped, however, to balance equities among future plaintiffs and defendants. Such forays can result in wide-ranging ramifications on society, the contemplation of which is precluded by the exigencies of deciding a particular case presented on a limited record developed by present parties. Absent compelling necessity, therefore, a Federal Court should not impose the policy pronouncements of the Supreme Court of one state upon the citizens of another. Nor are we at liberty to impose our own view as to what the law of Wisconsin should be. As the Wisconsin Supreme Court has recognized, such broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate. Holifield v. Setco Industries, Inc., 42 Wis.2d 750, 758, 168 N.W.2d 177 (1969).

565 F.2d at 441.

The only Florida decision which has considered the question of successor liability in products liability actions is Kinsler v. Rohm Tool Corp., 386 So.2d 1280 (Fla. 3d DCA 1980). There, the plaintiff asserted that the successor corporation was a mere continuation of its predecessor. In affirming a summary judgment against the plaintiff, the court said:

We find it unnecessary to reach the merits of the plaintiff’s theory for imposing successive corporate liability in this case because it is clear on reason and authority cited that the liability of the predecessor corporation, is, absent an express or implied assumption of debts and obligations by the successor corporation, not imposed upon the successor where the predecessor is still a viable, ongoing entity, amenable to personal service and financially responsible.

386 So.2d at 1281.

Though Mr. Kee is no longer in the lawnmower business, the plaintiffs are suing him in a companion case. Therefore, according to the theory of Kinsler, if he is financially responsible, his existence could ultimately bar the plaintiffs from recovery against the successor company under even the view expressed by Ray. However, we believe this case should be decided on reasoned legal principles rather than upon the fortuitous circumstance of a solvent defendant. Recognizing that there are some good social arguments for a rule which imposes liability upon a successor company which has maintained the product line of its predecessor, we nevertheless feel that the legislature and not the courts should be responsible for the adoption of such a rule. The fact that Florida has embraced the doctrine of strict liability in cases involving injuries caused by defective products is irrelevant because that doctrine contemplates the defendant’s active participation in placing the defective product into the stream of commerce. See Domine v. Fulton Iron Works, 76 Ill.App.3d 253, 32 Ill.Dec. 72, 395 N.E.2d 19 (1979). Therefore, we hold that the established principles pertaining to a successor’s liability for the debts of its predecessor are applicable to products liability cases.

Applying these principles to the facts of the case, it is clear that Kee Manufacturing Company, Inc., has no liability. It did not assume any of Mr. Kee’s debts or obligations. There was no statutory consolidation or merger, and the transaction could not be considered a de factor merger because Mr. Kee obtained no stock in Kee Manufacturing Company, Inc., for the sale of his assets. See Knapp v. North American Rockwell Corp., 506 F.2d 361 (3rd Cir. 1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). Since the ownership and management of the business changed entirely, the requisites of continuity were absent. Finally, no one has suggested the existence of fraud.

AFFIRMED.

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


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    C. F., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1523.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1981.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The state charged appellant with burglarizing a police supply store. He filed a motion to suppress certain tangible evidence which the court denied. Subsequently, the court adjudicated him a delinquent. On appeal he argues that the denial of his motion to suppress was error.

At about 2:30 a. m. on June 1, 1980, Tampa Police Officer R. J. Pierce saw appellant and a companion approach him on a moped. As they passed, the officer observed a nightstick and a long “kel-lite” flashlight partially wrapped in newspaper attached to the rear of the motorbike. Realizing that it was uncommon for persons other than police officers to possess these items, Officer Pierce stopped appellant and his friend to determine where they had gotten the flashlight and nightstick.

After making the stop, the officer, for his own protection, seized the nightstick and flashlight. As he did so, a pair of handcuffs fell from the newspaper. This further aroused Officer Pierce’s suspicions, and he directed another officer to determine whether a nearby police supply store had been burglarized. He then learned that someone had stolen nightsticks, kel-lites, handcuffs and watchbands from the store. He arrested both suspects, and a search revealed that their pockets contained numerous watchbands. Footprint and tire track comparisons at the supply store further implicated them in the burglary.

The outcome of this appeal turns on the question of whether Officer Pierce had a right to stop appellant in the first place because, if he did not, he could not have legally seized the contested items. Before a law enforcement officer may stop and temporarily detain an individual for investigation, he must have a founded suspicion that the person has committed, is committing or is about to commit a crime. Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976); § 901.-151(2), Fla.Stat. (1979). Such a suspicion is one “which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).

Appellant analogizes his situation to those cases in which the courts have deemed merely possessing a paper bag or making furtive glances at an approaching officer, without more, to be insufficient to create a founded suspicion for an investigatory stop. Lewis v. State, 382 So.2d 1249 (Fla. 5th DCA 1980); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978); Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978); Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976). However, we find these cases inapposite on their facts.

We concur with the state’s contention that under the circumstances known to Officer Pierce at the time of the stop, he had more than a mere hunch that appellant and his companion were involved in criminal activity. See Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980); State v. Stevens. It was highly unusual for appellant and his companion to have with them in the middle of the night two items ordinarily carried together only by policemen. By itself, the kel-lite flashlight might not have been out of place. However, the possession of the nightstick along with it, while not illegal, was extraordinary. It would not stretch the imagination to surmise that the boys planned to use the nightstick and the flashlight for a nefarious purpose. In any event, Officer Pierce had a reasonable basis to think that they might have recently stolen the two items. Therefore, we hold that there was sufficient evidence to support the trial court’s conclusion that Officer Pierce predicated his investigatory stop upon a founded suspicion.

AFFIRMED.

OTT and DANAHY, JJ., concur.

      . We reject the state’s alternative argument that since section 790.001(3)(a), Florida Statutes (Supp.1980), defines a “billie” as a weapon, Officer Pierce properly made the seizure incident to an arrest for carrying a concealed weapon. Pierce didn’t purport to make an arrest for carrying a concealed weapon. Moreover, the weapon was not concealed because he saw it before he made the stop. Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979).


author: PER CURIAM.

text:
    Nathaniel HOUSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1950.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Bennett H. Brummer, Public Defender and Ellen L. Leesfield, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant was charged, tried and convicted of the crime of robbery, for which he was sentenced to life imprisonment. During closing argument at trial, the prosecutor made several comments which attacked the veracity of the appellant. Two examples of those statements are:

“Who is telling the truth? If a witness has shown to have knowingly testified falsely concerning any material matter— and he did, he testified falsely — you have a right to distrust such a witness.”
“Who is telling the truth in this case? Him? The convicted felon? He is telling you the truth, or Bacallao, Reyes, Cohen, and a police officer? They are telling you the truth in this case. What do they have to gain? What does he have to lose?”

Appellant’s counsel objected to these remarks, but at no time did he request a curative instruction or a mistrial.

On appeal, the appellant contends the prosecutory’s highly prejudicial comments, made in his closing argument, were so improper as to deny him of his right to a fair trial.

We affirm on the authority of Clark v. State, 363 So.2d 331 (Fla.1978); Nevels v. State, 364 So.2d 517 (Fla. 1st DCA 1978); State v. Cumbie, 380 So.2d 1031 (Fla.1980); cf. Spenkelink v. State, 350 So.2d 85 (Fla. 1977).

Affirmed.


text:
    Johnny SOSTRE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-782.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

We affirm the revocation and sentence imposed. The court’s refusal to continue the proceeding until such time as appellant’s attorney could further prepare himself was not demonstrated to be a “gross and flagrant abuse of ... judicial discretion.” Williams v. Gunn, 279 So.2d 69, 70 (Fla. 1st DCA 1973). Padgett v. First Federal Savings & Loan Association of Santa Rosa County, 378 So.2d 58, 63 (Fla. 1st DCA 1979); Edwards v. Pratt, 335 So.2d 597 (Fla.3d DCA 1976). Nor are we satisfied that the evidence of appellant’s possession of a firearm was insufficient to support the finding of the court.

Appellant’s remedy, if one exists, lies in a collateral action challenging his counsel’s effectiveness at the hearing.

Affirmed.


text:
    David Lee MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-1485, 79-1681.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Bennett H. Brummer, Public Defender and Henry H. Harnage, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978); Eans v. State, 366 So.2d 540 (Fla. 3d DCA 1979); State v. Newman, 367 So.2d 251 (Fla. 1st DCA 1979); State v. Brown, 376 So.2d 382 (Fla. 1979); Sliger v. State, 382 So.2d 373 (Fla. 5th DCA 1980); State v. Luke, 382 So.2d 1265 (Fla. 1st DCA 1980).


author: PEARSON, TILLMAN, Associate Judge.

text:
    FINCHER INVESTIGATIVE AGENCY, INC., Appellant, v. Leslie SCOTT, Appellee.
    No. 80-215.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Underwood, Gillis, Karcher, Reinert & Valle and Anthony Reinert, Miami, for appellant.
    Greene & Cooper and Joan M. Bolotin, Rosenblatt, Greene & Aronowitz, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Associate Judge.

The appellant, Fincher Investigative Agency, Inc., was the defendant in a trial which resulted in a jury verdict and judgment for the defendant. Thereafter, the trial judge granted the plaintiff’s motion for a new trial upon the ground of improper juror contact. Fincher appeals the order granting the new trial, and urges first that the court erred in granting a new trial and second that the court erred in failing to grant defendant’s motions for a directed verdict.

The trial judge was clearly correct in ordering a new trial upon the basis of the bailiffs unauthorized communications with the jury. See Ivory v. State, 351 So.2d 26 (Fla.1977); Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966); Holzapfel v. State, 120 So.2d 195 (Fla.3d DCA 1960), cert. denied 125 So.2d 877 (Fla.1960). Initially both plaintiff and defendant realized this and each moved for a mistrial upon discovery of the intrusion upon the jury.

A closer question is presented upon Fincher’s point claiming error upon the trial court’s denial of its motions for directed verdict. In reviewing the evidence to determine if a directed verdict should have been granted, we must review the record in the light most favorable to the party moved against. We must disregard conflicting evidence and preserve for the jury every reasonable conclusion that could be reached from the evidence for the party moved against. The evidence in this case is in conflict on every major point. The record reviewed in the light above stated supports the trial court’s action in denying the defendant’s motions for a directed verdict.

A brief outline of the evidence for the plaintiff will be sufficient to show the basis for our holding. Scott was employed as a bagboy in a Winn-Dixie grocery store in Miami. Fincher Investigative Agency provided an armed security guard at the store. Scott was shot during a robbery of the store. A week prior to the robbery, a neighborhood “character” called “Granny” told the store manager that she had overheard three black males talking about robbing the store. The guard was informed and told to be on his toes. The guard understood that a part of his function was to act as a deterrent to robbery. Fincher gave the guard, who was on duty when the robbery occurred, no training in the use of the firearm that it gave him or in what to do should a situation such as the robbery arise.

Under the facts stated, it could not be found that the negligence of Fincher was the sole cause of Scott’s injury. However, there is no basis for a finding by the court that a jury could not find negligence on Fincher’s part and that such negligence contributed to Scott’s injury.

In Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976) the Supreme Court held that a burglar alarm company under contract to monitor an alarm system could be liable in negligence for its failure to inform the police of a trouble signal it received. Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla.3d DCA 1979) held that a security service whose function it was to patrol the Jackson Memorial Hospital parking complex could be held liable to a plaintiff assaulted in the complex for a negligent failure to properly perform that duty. We conclude, therefore, that no error has been shown upon the court’s refusal to direct a verdict for the defendant-appellant.

Affirmed.

      . Appeals taken from orders granting new trials should, to the extent possible, be treated as appeals from final judgments. Bowen v. Willard, 340 So.2d 110 (Fla. 1976); Florida Appellate Rule 9.130(a)(4). The appellate courts of this state have the authority to deal with appellate issues other than those stated as the basis for orders granting new trials. Royal Castle

        Systems, Inc. v. Fields, 354 So.2d 947 (Fla.3d DCA 1978).

      . Cohn v. Surfside Plaza Hotel, 377 So.2d 44 (Fla.3d DCA 1979); Packer v. Winston Towers One Hundred Association, Inc., 377 So.2d 46 (Fla.3d DCA 1979).

      . The police, however, were not told about the planned robbery.


text:
    The STATE of Florida, Appellant, v. Thomas LOVETT, Appellee.
    No. 80-654.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Janet Reno, State Atty., and Milton Robbins, Asst. State Atty., for appellant.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. In re 1972 Porsche 2 Dr., 74 License Tag ID 91780, 307 So.2d 451 (Fla. 3d DCA 1975); Weed v. Wainwright, 325 So.2d 44 (Fla. 3d DCA 1976); Session v. State, 353 So.2d 854 (Fla. 3d DCA 1977).


text:
    T. L. L. a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-794.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Michael A. Vandetty, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. B. M. v. State, 341 So.2d 801 (Fla. 3d DCA), cert. denied 351 So.2d 405 (Fla.1977); T. B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975); Arnold v. State, 265 So.2d 64 (Fla. 3d DCA 1972), cert. denied 272 So.2d 817 (Fla.1973).


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. M-B LEASING, INC., Appellee.
    No. 80-974.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, William 0. Mehrtens, Jr., Miami, for appellant.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We reverse the trial court’s order awarding attorneys’ fees to M-B Leasing, Inc. upon a holding that (1) M-B Leasing, Inc. is not an entity to which attorneys’ fees may be awarded under the applicable statute, Section 627.428(1), Florida Statutes (1979), such an award being available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and the insured’s assignees, Roberts v. Carter, 350 So.2d 78 (Fla.1977); (2) M-B Leasing’s pleadings, which expressly sought coverage under the Hartford policy as a “third party beneficiary,” an entity not entitled to attorneys’ fees, Arkwright-Boston Manufacturers Mutual Insurance Co. v. Dunkel, 363 So.2d 190 (Fla.3d DCA 1978), see also American Home Assurance Company v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979), could not occasion a finding by the trial court that M-B Leasing was an “insured” under the policy.

Reversed with directions to vacate the order awarding attorneys’ fees to M-B Leasing, Inc.


text:
    Carlos DE LA GUERA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1063.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Samek & Besser and Jeffrey Samek, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Reis v. State, 248 So.2d 666 (Fla. 3d DCA 1971); Walden v. State, 284 So.2d 440 (Fla. 3d DCA 1973); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974); Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975); Evans v. State, 356 So.2d 1355 (Fla. 1st DCA 1978).


text:
    Alvin F. FRAZIER, Patricia N. Frazier, and Government Employees Insurance Company, Appellants, v. Michael J. SCHNAEDELBACH, a minor, by and through his Father and Next Friend, Michael Schnaedelbach and Michael Schnaedelbach, individually, Appellees.
    No. 80-1880.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLe-more, Miami, for appellants.
    Neblett & Sauer and C. Kent Miller, Key West, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The trial court granted a motion to dismiss a third-party complaint finding no cause of action because of the doctrine of intra-family immunity.

We reverse upon the reasoning contained in Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981), opinion filed January 7, 1981, and remand the case to the trial court for further proceedings.

Reversed and remanded with directions.


text:
    ASSOCIATED MEDICAL INSTITUTION, INC., a Florida Corporation d/b/a Hialeah Hospital, Petitioner, v. Jennie J. TRUBE, Respondent.
    No. 81-123.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for petitioner.
    Ray Munson and Mortimer Fried, Miami, for respondent.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

A party cannot be compelled to produce materials which are the work product of his attorney and which relate to the subject matter of the suit without a showing of unusual circumstances. Miami Transit Company v. Hurns, 46 So.2d 390 (Fla.1950); Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976) cert. denied, 354 So.2d 980 (Fla.1977); Dade County v. Monroe, 237 So.2d 598 (Fla. 3rd DCA 1970); Fla.R.Civ.P. 1.280(b)(2). There is no conflict between Section 768.41(4), Fla.Stat. (1979) and Fla.R.Civ.P. 1.280(b)(2).

The writ of certiorari is granted and the orders dated January 15, 1981 and January 19, 1981, insofar as they require production of incident reports, are hereby quashed.


text:
    Joseph M. BERTONE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-242.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Joseph M. Bertone, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

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


author: FRANK D. UPCHURCH, Jr., Judge. SHARP, J.,

text:
    Donna H. HUNT, Appellant, v. Jack R. HUNT, Appellee.
    No. 00-145/T1-104.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Selig I. Goldin, Gainesville, for appellant.
    H. Charles Woerner, Jr., South Daytona, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Donna H. Hunt, the former wife, appeals a judgment of the Circuit Court for Volusia County modifying a final judgment in a dissolution case. The lower court terminated the wife’s permanent alimony rights, denied her petition for an increase in alimony, and on rehearing, terminated any jurisdiction to award her alimony after June 1, 1980. We affirm in part and reverse in part.

The Hunts were married in 1956. The 1973 judgment of dissolution awarded the wife $700.00 per month permanent alimony and no other assets. At the time of the petition for modification, Mrs. Hunt was sixty years of age, and claimed to be in poor health. At the time of the dissolution, she had a masters degree in education. Immediately prior to the dissolution, her teaching certificate had lapsed. Her earnings at that time are unknown though she did make almost $8,000.00 in 1964. At the time of the petition, she claimed she had no income other than the alimony.

While the trial court’s action may seem harsh at first glance and we might not have reached this result, it is not the function of this court to substitute its judgment for that of the lower court. The trial court is the trier of fact and its findings will not be disturbed on appeal if supported by competent substantial evidence. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). The trial court undoubtedly determined that some of Mrs. Hunt’s uncorroborated proof was unreliable or unbelievable. There is ample support in the record to question Mrs. Hunt’s credibility-

The testimony of Mrs. Hunt conflicted with that of Mr. Hunt. The trial court could have concluded that Mrs. Hunt deliberately undervalued her assets and overstated her needs. For example, Mrs. Hunt claimed a need for an increase in alimony from $700.00 to $2,000.00 per month minimum. She claimed a need for $65,000.00 per year. She valued property she acquired in 1974 at $35,000.00 which a M.A.I. appraiser valued at $53,000.00. Another parcel she valued at $12,000.00 was appraised at $26,000.00. Mrs. Hunt permitted her teaching certificate to lapse, which the trial judge could have concluded was premeditated. While complaining of her precarious finances and health, she has found strength and funds to attend a seaweed symposium in Santa Barbara, California and to observe unique life forms in the Galapagos Islands. She was also able to visit for a two week conference in Athens, Georgia and to make several trips around the state, but was unable to devote more than two hours per day to her studies because she had to be with her mother. Property which had been bringing in $500.00 per month in rent the year before was unrented at the time her financial affidavit was filed.

While Mrs. Hunt had a master’s degree in education after the divorce, she pursued an entirely new field, marine biology, in which to obtain her doctorate even though her future employment prospects were very poor. A professor testified that in the field of marine biology the prospects of employment were poor, less than 50% for a young person, but for Mrs. Hunt even upon an award of a doctorate her chances were “nil.” She attributed her lack of progress to poor health and needs of her mother. She played and taught tennis, but contended that because of severe arthritis she had difficulty with the controls of a microscope.

The trial court specifically found:

The wife has a master’s degree in education. She taught school for ten years and allowed her teacher’s certificate to lapse the year the dissolution action was filed. After the dissolution of her marriage, she was accepted in a doctoral program at the University of Florida. She has pursued that course for five years. Her testimony leaves serious doubt as to whether she will ever complete the program and obtain her degree in her chosen field of marine biology. There was even some suggestion she might change her field. It is abundantly clear to the court that wife is a qualified and experienced teacher. In addition to teaching before the dissolution, she taught college classes after the dissolution as a duty of her assist-antship while pursuing her degree. At that time, she was conducting research in the laboratory and doing her course work. Wife is capable of supporting herself. She was unemployed at the time of the dissolution and required some period to obtain employment and re-establish her life. Wife does not have a vested right in husband’s earnings forever nor is husband obligated to maintain her as a student forever. Although wife claims poor health, her low blood sugar condition has not impeded her ability to meet the demands of her doctoral program nor has it affected her ability to teach or play tennis.
Since the dissolution, wife has acquired assets even though she has not held a full time job. She owns two homes. One in Gainesville and one in Daytona Beach. She does not use the home in Daytona Beach but indicated she intends to retain it. The broker testified the value of the Daytona Beach property was $26,000.00.

These findings are supported by substantial evidence in the record and should not be disturbed on appeal absent a showing of an abuse of discretion by the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, the court should have retained jurisdiction to award alimony in the future. See Davis v. Davis, 358 So.2d 126 (Fla. 2d DCA 1978); Mumm v. Mumm, 353 So.2d 134 (Fla. 3d DCA 1977); Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975). Mrs. Hunt was sixty years old and while her health at this time does not affect her ability to support herself, it may in the future.

The order of the trial court dated March 28, 1979 suspending the alimony award is affirmed but the order of May 14, 1979, as amended by the order of May 19, 1979 which terminated the jurisdiction of the court to award alimony in the future, is reversed.

DAUKSCH, C. J., concurs.

SHARP, J., dissents with opinion.

SHARP, J.,

dissenting.

I dissent in this case because the record fails to show any basis to sustain the trial judge’s required and essential determination that the circumstances concerning these parties or one of them had substantially changed since the original dissolution judgment in which the wife was awarded permanent alimony in the amount of $700.00 per month. This determination is essential to insure some kind of finality in domestic relations litigation, and to prevent the trial and appellate courts from being inundated by suits brought by parties who are dissatisfied with their dissolution judgments. Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980); Bragdon v. Bragdon, 393 So.2d 73 (Fla. 5th DCA 1981); McBride v. McBride, 352 So.2d 1254 (Fla. 1st DCA 1977); Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977); Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975).

Where the modification results in termination of a permanent alimony award, the party seeking the change must clearly establish circumstances not present and contemplated at the time of the original judgment, and the showing should establish one or both of the following: that the complaining party is no longer able to pay the required amount of alimony; or that the recipient is now able to support himself or herself in a manner beyond that existent at the time of the original judgment. Withers v. Withers.

The first situation is not appropriate in this case. At the time of the dissolution, the husband’s salary was $23,000 per year and his net worth was $40,000. At the time of the modification proceeding his income was $46,000 per year and his net worth was $85,000. He had maintained his position as president of the Embry-Riddle Aeronautical University in Daytona Beach, and he enjoyed various additional benefits related to his presidency and his status as a retired Navy officer. He had no dependents.

Nor did the record show any substantial change in Mrs. Hunt’s financial status or her ability to be self-supporting. In granting the modification, the trial judge noted that Mrs. Hunt had a master’s degree in education and had been employed as a teacher 7 years prior to her marriage to Mr. Hunt. This situation existed at the time of the original dissolution. The trial judge also noted she had been working on her PhD at Gainesville in marine biology, and was in good enough health to play tennis occasionally and travel. He did find however, that because of her poor record in ability to do research, it was unlikely that she would ever obtain her degree. At the time of the modification proceeding, the record showed she had been dropped from the graduate program because of her unsatisfactory progress in research, due in part to arthritis in her hands and her need to care for her elderly mother who lived with her.

There was no evidence whatsoever that Mrs. Hunt was or had become in any way self-supporting since the dissolution proceeding. Her income tax returns showed she earned small amounts through various “assistantships” at the University (a method to help financially needy students finance their education); but the total amounts earned were less than the sums she earned in part-time work while she was married to Mr. Hunt. In any event, she was not eligible for any more “assistant-ships.”

Through the help of her mother, Mrs. Hunt had acquired a small rental property in Daytona Beach and a large residence in Gainesville they had hoped to rent in part to students. But again, Mrs. Hunt’s income tax returns showed, as did her unrefuted testimony, that she had operated these properties at a loss because the rents never equalled the cost of maintenance, taxes and repair. The Gainesville property was in such bad repair the city had refused her permits to rent the property, and she had no funds to make needed major repairs.

In sum, the record showed that Mrs. Hunt, at the time of the modification proceeding was 60 years old, and in poor health; and that the likelihood of her becoming self-supporting at this point in her life was even less than at the time of the dissolution. Permanent alimony should not have been terminated in this case. Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Howell v. Howell, 301 So.2d 781 (Fla. 2d DCA 1974); DeFrancisco v. DeFrancisco, 273 So.2d 780 (Fla. 2d DCA 1973). To conclude otherwise is, in my judgment, an abuse of discretion and I would reverse the judgment appealed insofar as it terminated permanent alimony for Mrs. Hunt.

      . It is not a realistic remedy as the majority opinion suggests, to have the lower court maintain jurisdiction to award alimony later, should Mrs. Hunt later “need” it. In such a proceeding she will have the burden of proving a “substantial change of circumstances” from the present situation — not an inconsequential matter. Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).


author: ORFINGER, Judge.

text:
    Charles CANADA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-2644/T4-326.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant contends on appeal that his conviction and sentence for armed robbery should be reversed because the trial judge refused to instruct the jury on minimum and maximum penalties as requested by appellant.

The Supreme Court has now held that the failure to give the instruction on penalties when requested, constitutes error. Tascano v. State, 393 So.2d 540 (Fla.1980). Florida Rule of Criminal Procedure 3.390(d) provides that no party may assign as error on appeal the failure to give an instruction unless he properly objects thereto. Without such timely and proper objection, the failure to give the requested instruction is not preserved for appeal. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).

Even though the opportunity was given by the trial court, no objection was made to the refusal of the trial court to give the requested instruction, so the issue has not been preserved for appeal.

Appellant’s assertion that the sentence imposed exceeds the maximum permitted by law has been answered contrary to his contention in Studstill v. State, 394 So.2d 1040 (Fla. 5th DCA 1981).

Accordingly, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

DAUKSCH, C. J., and EVANS, VERNON W., Associate Judge, concur.


author: SHARP, Judge.

text:
    TORTOISE ISLAND COMMUNITIES, INC., et al., Appellants, v. Keith M. ROBERTS et al., Appellees.
    Nos. 79-860/T4-504, 80-691.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.

      Andrew A. Graham and Gary E. Brinson, Melbourne, for appellants.
    Pierce Wood, Melbourne, for appellees.
   SHARP, Judge.

Tortoise Island Communities, Inc., appeals from a judgment permanently enjoining it from interfering with appellees’ (a group of subdivision lot owners) canal easements which crossed the appellants’ island to give the appellees access to the Indian River. The canal, known as the Moorings Cut, was not appellees’ only access to the Indian River, but an easement over it had been expressly granted by a prior common grantor to each of them, and their deeds were of record. On appellants’ motion for clarification the trial court modified its judgment by adding a permanent injunction against appellants from building any kind of bascule bridge over the canal. We affirm the original judgment and reverse the modification.

The rights of the owners of an easement over a “servient estate” are not absolute and unlimited. They are limited so that each party may reasonably enjoy his respective property rights. Costin v. Branch, 373 So.2d 370 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1190 (1980). The holder of a deeded or express easement has essentially the right of free passage over the easement to the degree and amount originally contemplated by the parties. The owner of the servient estate may, however, use his land, including the easement, in such a way that will not interfere with the easement owner’s right of passage. Butler v. Haley Greystone Corp., 352 Mass. 252, 224 N.E.2d 683 (1967); Edwards v. Julian, 192 Pa.Super. 121, 159 A.2d 547 (Pa. Super.1960); North Union Canal Co. v. Newell, 550 P.2d 178 (Utah 1976).

The record in this case fails to show any basis to sustain the permanent injunction against any kind of bascule bridge under any circumstances. Florio v. State, 119 So.2d 305 (Fla. 2d DCA 1960); A. & P. Food Stores, Inc. v. Kornskein, 121 So.2d 701 (Fla. 3d DCA 1960). The appellants may be able to bridge the canal so as not to materially interfere with appellees’ easement rights, and they should not be foreclosed from making such a showing. The judgment is therefore

AFFIRMED in part and REVERSED in part.

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

      . Crutchfield v. F. A. Sebring Realty Co., 69 So.2d 328 (Fla.1954); Corrigans v. Sebastian River Drainage District, 223 So.2d 57 (Fla. 4th DCA 1969).


author: COWART, Judge.

text:
    Gary Jerome BELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-1677/T4-686.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Attorney at Law, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant, after being arrested following a controlled drug buy, used a concealed derringer pistol to shoot two undercover agents. Agent Sears was shot in the head and Agent Wimberly in the throat. Both agents survived but the left side of Agent Sears’ face was paralyzed; he is unable to close his left eye and is deaf in the left ear. Charges filed against appellant included attempted first-degree murder of Agent Wimberly (the information alleging that in the furtherance of such attempt appellant did shoot Agent Wimberly with a firearm) and an aggravated battery on Agent Sears by the use of a deadly weapon.

In charging the jury as to aggravated battery, both as a lesser included offense of the attempted murder of Agent Wimberly and as the alleged aggravated battery on Agent Sears, the court explained a battery and then followed section 784.045, Florida Statutes (1979), to define an aggravated battery as a battery in commission of which a person (a) intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement or (b) uses a deadly weapon. The trial court further informed the jury that in this case it was alleged that a firearm or handgun was used and, consistent with that allegation, the verdict forms related only to aggravated battery with a firearm. The trial court also gave Florida Standard Jury Instruction (Criminal) 2.17 (based on section 775.087, Florida Statutes), in effect advising the jury that punishment for the crimes charged was greater if they found in their verdict that during the commission of the crimes alleged the accused used a weapon or firearm.

As to both of these charges appellant was convicted of aggravated battery with a firearm, a violation of section 784.045(l)(b), Florida Statutes (1979), classified in section 784.045(2), Florida Statutes (1979), as a felony of the second degree and, therefore, under section 775.082(3)(c), Florida Statutes (1979), punishable by imprisonment not exceeding 15 years.

The trial court applied section 775.-087(l)(b), Florida Statutes (1979), and reclassified both offenses to be a felony of the first degree and imposed two consecutive 30 year sentences under section 775.082(3)(b), Florida Statutes (1979).

A problem arises in this case from the fact that there are two separate and distinct types of aggravated battery, i. e., a battery under section 784.045(l)(a) which intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, and a battery under section 784.045(l)(b) which is committed by one who uses a deadly weapon. Obviously in a given case, as here, the facts could be that great bodily harm, permanent disability or permanent disfigurement resulted from the use of a deadly weapon. However, distinctions between these two species of aggravated battery must be carefully made and preserved because of the necessity of procedural and substantive consistency between allegations, proof, verdict, judgment and punishment in criminal cases. Neither battery nor either type of aggravated battery is a necessarily lesser included offense of attempted murder but either type of aggravated battery could have been alleged as a permissible lesser included offense of the attempted murder charge. See Brown v. State, 206 So.2d 377 (Fla.1968). We hold the allegation “did shoot the said Alan Wimberly with a firearm” to be sufficient to allege a battery committed by use of a deadly weapon (section 784.045(l)(b)), as a lesser included offense of the attempted murder charge. However, section 775.-087(1), Florida Statutes (1979), providing for the reclassification of felonies and the consequent enhancement of possible punishment when during the commission of a felony the defendant carries, displays, uses, threatens or attempts to use any weapon or firearm, expressly excepts from its application to “a felony in which the use of a weapon or firearm is an essential element.”

Of course, every deadly weapon as used in section 784.045(l)(b), Florida Statutes (1979), (the second type of aggravated battery) is a weapon within the exception in section 775.087(1), Florida Statutes (1979). Therefore, no conviction of aggravated battery under the “deadly weapon” subsection can be enhanced under section 775.087(1), Florida Statutes (1979). See Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978), reaching the same conclusion as to an aggravated assault with a deadly weapon (§ 784.021(l)(a), Fla.Stat. (1979)). Here, as there, we do not reach the question as to whether a battery causing great bodily harm, permanent disability or permanent disfigurement can be reclassified under section 775.087(l)(b), Florida Statutes (1979), where a weapon is used because here the allegations, instructions, verdicts and judgments relate only to aggravated battery by a firearm. Under the allegations in this case, the jury should not have been instructed as to aggravated battery by intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement and should not have been instructed as to enhancement of punishment as to aggravated battery by use of a deadly weapon.

We have considered the other points on appeal but find no error as to them.

The sentences as to Count 1 and Count 2 of Case Number CR 77-3699 in the Circuit Court of Orange County, Florida, are each hereby reduced from 30 years to 15 years (with three years minimum mandatory under section 775.087(2)(b), Florida Statutes (1979)) and the judgment and sentences appealed are otherwise, in all respects,

AFFIRMED as modified.

COBB and UPCHURCH, JJ., concur.

      . See Fla.R.Crim.P. 3.985.

      . Also the note to Florida Standard Jury Instruction (Criminal) 2.17 states that the instruction should not be given if the use of a firearm or weapon is an essential element of the felony.

      .We do note that if enhancement is to be sought the charging document should carefully allege battery causing great bodily harm, etc., and allege one of the alternative verb forms in Section 775.087(1) relating to use of a weapon or firearm, and the jury should not only be properly instructed but also given alternative verdict forms so they can either find or not find that a weapon or firearm was used.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Charles ROMMELL, Appellant, v. FIRESTONE TIRE & RUBBER COMPANY, Appellee.
    No. 79-508.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.

      Jack B. Nichols and Harold L. Downing, Nichols & Associates, P.A., Orlando, for appellant.
    David L. Holbrook, Wells, Gattis & Hal-lowes, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant had filed suit against Firestone to recover for damages he sustained when his truck overturned on the highway. Appellant had claimed that the accident was due to the “blow-out” of two Firestone tires on his truck. He appeals from a judgment after a jury verdict holding that the tires were not defective. We reverse and remand for a new trial.

The first point raised on appeal was: WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PLAINTIFF’S MOTION FOR NEW TRIAL AFTER DEFENSE COUNSEL WENT BEYOND THE PERMISSIBLE SCOPE OF INQUIRY CONCERNING APPELLANT’S PRIOR CRIMINAL CONVICTIONS BY NAMING A SPECIFIC CRIME WITHOUT OFFERING A CERTIFIED COPY OF SUCH CONVICTIONS INTO EVIDENCE.

The accepted procedure for interrogating a witness is to ask:

1) whether the witness has been convicted of a crime, and
2) how many times.

§ 90.08, Fla.Stat. (1971); McArthur v. Cook, 99 So.2d 565, 567 (Fla.1957). If the witness admits the prior conviction, the inquiry by his adversary must end, but if the witness denies the prior conviction, then his adversary may produce a record of any conviction to impeach the credibility of the witness. Hendrick v. Strazzulla, 135 So.2d 1 (Fla. 1961); Mead v. State, 86 So.2d 773 (Fla. 1956); Robinson v. Citrus Council of Girl Scouts, Inc., 193 So.2d 42 (Fla. 4th DCA 1967).

In the present case, defense counsel asked the following questions:

Q. Charles, have you ever been convicted of a crime?
A. Yes, sir.
Q. How many times?
A. Twice.
Q. Have you ever answered that question when it was asked to you, “no?”

During redirect, appellant testified that he had been convicted of a misdemeanor at age eighteen and that he had been convicted of another offense, also a misdemeanor, since the date of the deposition. On recross, defense counsel asked the following question:

Isn’t it true, Mr. Rommell, that you were convicted of a crime of fraudulently endorsing a federal check just recently ? (Emphasis added.)

Firestone argues the above question was proper as Rommell attempted to create the impression that both crimes were remote in time. However, the record shows that appellant did not misrepresent the dates of the offenses to the jury as Firestone has contended.

Even if Firestone’s contention is accepted, the naming of a specific crime to correct the impression was improper. See Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976) (to impeach a defendant by past convictions, a record of such convictions must be offered into evidence.) In its brief, Firestone admits that the question was withdrawn because trial counsel did not have a record of the conviction. Thus it is clear that the conviction could not have been used for impeachment purposes. Furthermore, counsel was unable to remedy the situation on redirect; the court ruled that no rehabilitation was necessary because the question had been stricken. Considering that counsel knew he would not be able to pursue the matter, the asking of the question appears to have been a tactic to get the information before the jury for its prejudicial effect. Appellant was not only prejudiced by defense counsel but also by the trial court’s refusal to allow rehabilitation.

We also find merit in the second point raised by appellant:

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING DEFENDANT TO TESTIFY CONCERNING ITS GENERAL EXPERTISE IN MANUFACTURING TIRES AFTER THE TRIAL COURT RESTRICTED PLAINTIFF’S DISCOVERY TO THOSE PROCESSES IN USE AT DEFENDANT’S DES MOINES, IOWA MANUFACTURING PLANT.

Appellant concedes that Firestone’s expert, Robert S. Lee, was an expert in tire design or in general manufacturing technology but was not qualified to testify concerning the procedure at the Des Moines plant where the tires in question were manufactured. During the discovery period pri- or to trial, Firestone had obtained a protective order which limited appellant’s discovery questions to those concerning the manufacturing process at the Des Moines plant only. Therefore, appellant contends that Firestone’s expert should have been qualified and allowed to testify only as to the manufacturing process and product of the Des Moines plant. Over appellant’s objection, the court permitted Firestone’s expert to describe the significant elements of Firestone’s manufacturing process. The court, in ruling on the objection, advised appellant that he could qualify the questions on cross-examination as to the Des Moines plant.

Appellant contends that the testimony of Firestone’s general manufacturing process unfairly prejudiced him because the protective order had prevented him from gathering tire manufacturing data in general. A review of the expert’s testimony reveals that he did not refer to any specific manufacturing plant but rather spoke about the manufacturing process in general. The record also reflects that the expert was not qualified to discuss the specific manufacturing procedures at the Des Moines plant. Because of the protective order, appellant was unable to determine if and how that plant differed from other plants. He was also unable to gather general tire manufacturing data. Thus, appellant was severely handicapped in his ability to refute or impeach the expert’s testimony. To allow an expert to testify about matters which were precluded from discovery is an abuse of discretion.

REVERSED and REMANDED for a new trial.

COBB and COWART, JJ., concur.

      . Appellant had apparently answered the question about conviction of a crime in the negative at his deposition.


text:
    Albert THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-356.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence for battery upon a law enforcement officer, battery, and resisting arrest without violence. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On July 7, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1967).


text:
    Richard Joseph NICKLES, Appellant, v. STATE of Florida, Appellee.
    No. 80-716.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment for battery on a law enforcement officer. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On October 8, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    William H. BRONSON et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY et al., Appellees.
    No. 80-780.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.

      John B. Ritch, Overstreet & Ritch, Kis-simmee, for appellants.
    Kenneth C. Crooks of Nabors, Potter, McClelland, Griffith & Jones, P. A., Titus-ville, for appellees.
   SHARP, Judge.

William and Joyce Bronson, title holders of record to a parcel of real property in Brevard County, and Bronson and Veal Enterprises, Inc., the holder of an unrecorded quitclaim deed to the property, appeal from a summary judgment denying them any interest in the “excess” funds obtained by the county when the property was sold to pay taxes. The trial court held the claim was barred by the statute of limitations, section 95.11(4), Florida Statutes (1973), or by section 197.291(2), Florida Statutes (1973). We affirm.

On June 3, 1974, the property was sold for $6,500.00 at a tax sale, and the county notified William and Joyce Bronson it was holding the excess ($5,411.28) for their benefit. In July of 1974, a corporate officer of the unrecorded title holder demanded payment and was told he would have to establish his claim by affidavit from William and Joyce. The clerk transferred the excess to the Board of County Commissioners on November 1, 1974, pursuant to the procedure in section 197.186, which is incorporated by reference into section 197.291(2).

At the end of July, 1977, Bronson and Veal Enterprises, Inc. presented the required affidavit to the clerk and made an unsuccessful demand for payment of the excess funds. It filed suit to require payment of the excess on August 31, 1978.

It appears to us that the applicable statute of limitations or non-claim is section 197.291, Florida Statutes (1973). Section 197.291(2) provides:

If the property is purchased for an amount in excess of the statutory bid of the certificate holder, the excess shall be paid over and disbursed by the clerk. The clerk shall distribute the excess to the governmental units for the payment of any lien of record held by the governmental unit against the property.... If, after all liens of record of the governmental units upon the property are paid in full, there remains a balance of undistributed funds, the balance of the purchase price shall be retained by the clerk for the benefit of the person who on the day of the sale was the legal titleholder of record.... Excess proceeds shall be held and disbursed in the same manner as unclaimed redemption moneys in s. 197.-186, [F.S.1973].... (emphasis supplied).

Section 197.186, Florida Statutes (1973), provides:

When money is held by the tax collector for the redemption of tax certificates, which money is by the course of law provided to be paid over to the holder of a redeemed tax certificate, but as to which the tax collector has not made payment over to the tax certificate holder of record, the tax collector shall, upon the expiration of ninety (90) days from the receipt of the moneys, remit, on the first day of the following quarter, to the board of county commissioners the unclaimed redemption moneys, less the sum of one dollar on each hundred dollars or fraction thereof, which shall be retained by the collector as service charges. Two years after the date of the unclaimed redemption moneys were remitted to the board of county commissioners, all claims to such moneys are hereby declared to be forever barred, and such moneys shall become the property of the county. (Emphasis supplied.)

Sections 197.186 and 197.291(2) have been amended several times. After the 1972 amendment these sections contained similar provisions for the disbursement of excess funds and identical limitations provisions. In 1973 the duplicate disbursement and limitations language of section 197.291(2) was deleted and it was replaced with the cross reference to section 197.186. No substantive change was intended.

AFFIRMED.

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

      . Section 197.291(2), Florida Statutes (1973), provides:
      Excess proceeds shall be held and disbursed in the same manner as unclaimed redemption money in § 197.186 [F.S.1973],
      Section 197.186 provides:
      [T]he tax collector shall upon the expiration of ninety (90) days from the receipt of the moneys, remit, on the first day of the following quarter, to the board of county commissioners the unclaimed redemption moneys


text:
    STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and D. Jarrard, Petitioners, v. Honorable John J. UPCHURCH, Chief Judge of the Seventh Judicial Circuit Court of Florida, Respondent.
    No. 80-1186.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.

      Chester G. Senf, Asst. Gen., Counsel, Dept, of Health & Rehabilitative Services, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for respondent.
   ORFINGER, Judge.

Petitioners have filed an original proceeding seeking a writ of prohibition directed to the respondent as the chief judge of the Seventh Judicial Circuit, seeking to set aside an order entered by the respondent, entitled “Order Establishing Additional Juvenile Detention Criteria” and made effective in the four counties within said circuit, Flagler, Putnam, St. Johns and Volusia. Petitioners attack said order as being without the jurisdiction of the chief judge because it is not an “administrative order” as defined in Rule 2.020, nor is it a local court rule within the scope of Rule 2.050 of the Florida Rules of Judicial Administration.

The Florida Legislature in 1980 amended section 39.032(2), Florida Statutes to read as follows:

Unless otherwise ordered by the court, a child taken into custody shall not be placed or detained in a secure facility prior to the disposition by the court unless:
(a) The child is from another jurisdiction and is an escapee from a commitment program or an absconder from probation, a community control program, or parole supervision for an offense which, if committed by an adult, would be a violation of law, or the child is wanted by another jurisdiction for an offense which, if committed by an adult would be a violation of law;
(b) The child requests protection in circumstances that appear to present an immediate threat to his personal safety;
(c) The child is charged with a capital felony, life felony, or felony of the first degree; with a crime of violence, that is, murder in the third degree, manslaughter, sexual battery, robbery, aggravated battery, or aggravated assault; or with two or more serious serious property crimes arising out of separate transactions;
(d) The child is charged with a serious property crime; that is, burglary as defined in § 810.02(2) and (3) or arson; or with the sale or manufacture of, or the trafficking in, a controlled substance; which if committed by an adult would be a felony; and
(1) He is already detained or has been released and is awaiting final disposition of his case;
(2) He has a record of failure to appear at court hearings;
(3) He has a record of violent conduct resulting in physical injury to others; or
(4) He has a record of adjudications for serious property offenses.

The order in question obviously expands the situations in which the intake officer “shall detain” juveniles in a secure facility. Petitioner contends that this order is unlawful, while respondent contends that as chief judge he has this power because of the opening portion of the amended statute which reads “unless otherwise ordered by the court .... ”

The initial question presented by this petition is whether prohibition is a proper remedy in this instance. Prohibition is a preventive, rather than a corrective remedy; it acts only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued. English v. McCrary, 348 So.2d 293 (Fla. 1977); State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974); State ex rel. R. C. Motor Lines, Inc. v. Boyd, 114 So.2d 169 (Fla.1959); State ex rel. Jennings v. Frederick, 137 Fla. 773, 189 So. 1 (1939); State ex rel. Shailer v. Booher, 241 So.2d 720 (Fla. 4th DCA 1970).

This extraordinary writ issues only to prevent the commission of an act. It is not an appropriate remedy to revoke an order already issued. The very name of the writ suggests its proper use. It is used to prohibit the doing of something, rather than to compel the undoing of something already done.

114 So.2d 169, 170. Thus prohibition is not a proper remedy in this instance where the order has already been entered.

Although prohibition is an improper remedy, we have determined to treat the petition as a petition for certiorari, which we are authorized to do under Rule 9.040(c), Florida Rules of Appellate Procedure. See State ex rel. Wainwright v. Booth, 291 So.2d 74 (Fla. 2d DCA 1974). We consider then the question of whether the respondent departed from the essential requirement of law in promulgating the contested order.

This order does not arise out of any adversary proceeding, nor does respondent contend that this order was adopted as a “local rule.” He does contend, however, that the order is consistent with the definition of an administrative order and further comes within the purview of his authority as chief judge to issue a plan “which shall include an administrative organization capable of effecting the prompt disposition of cases ...” Fla.R.Jud.Admin. 2.050(b)(3).

Rule 2.020(c), Florida Rules of Judicial Administration, defines an administrative order as “a directive necessary to administer properly the court’s affairs, but not inconsistent with the constitution ...” We do not construe the order in question as one necessary to administer the court’s affairs. Instead, it is an attempt to legislate in the area of juvenile law, a function expressly delegated to the Legislature by the constitution. It is clear from the closing language of the section of the statute under consideration that the Legislature intended that the criteria for placement in a secure detention facility set forth in that section “shall govern the decision” in determining whether a secure detention facility is warranted unless otherwise ordered by the court on a case by case basis. To give any other meaning to the statute would be to permit the court to amend the obvious statutory intent, which is not constitutionally permissible.

We understand the purpose and intent of the administrative order and perhaps would amend the statute in like manner were we permitted by law to do so. However, as was aptly said in the case of Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980), where an order of similar import was vacated:

Our theory of government is that of separation of powers. The Legislature and not the court is responsible for legislating. It may well be time to drastically change the law on juveniles.... Judges of Courts cannot do so because we were not elected to the Florida Legislature.

390 So.2d at 392.

The respondent acted in excess of his jurisdiction, so we have no choice but to vacate the order below.

ORDER VACATED.

DAUKSCH, C. J., and SHARP, J., concur.

      . The order, exclusive of its formal parts, is set forth here in full.
      WHEREAS, it has been made known to the undersigned that the prompt and expeditious administration of Justice and the processing of Circuit Court Juvenile cases in Flagler, Putnam, St. Johns and Volusia Counties, requires an Order establishing additional Juvenile Detention Criteria:
      WHEREAS, F.S. 30.032(2), 1980, enumerates the criteria for secure detention of children prior to the court’s disposition. These criteria are narrow in scope and do not consider other situations which may endanger the child or jeopardize the community if the child is not initially detained.
      Pursuant to those further provisions of this statute which authorize the court to “otherwise" order detention in a secure facility, it is ADJUDGED:
      1. The intake officer responsible for detention screening shall detain in a secure facility any child who:
      a) is an escapee from a commitment program in Florida,
      b) is currently under a Florida probation or community control order and is newly charged with a felony,
      c) is a runaway from another State, and is charged with a crime either in that State or in Florida,
      d) has been ordered into custody by a Florida Court,
      e) who is, by virtue of involvement in drugs or alcohol, or any uncontrollable mental disability, unable to control his or her own conduct, as evidenced by such activities as to place the said child in clear and present danger, or to cause an immediate danger to the community unless the child is temporarily detained.
      f) is charged with criminal mischief and the damage is more than $1,000.00.
      2. Children detained under this Order will be presented for hearing within the time prescribed by law.


author: COBB, Judge.

text:
    Lacy HOLLINGSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1407.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Lacy Hollingsworth, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Hollingsworth was convicted of possession of a controlled substance in violation of section 893.13(l)(e), Florida Statutes. The trial court sentenced him to a split sentence of two-and-one-half years imprisonment to be followed by two-and-one-half years of probation. Hollingsworth filed a motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, in which he attacked the split sentence as illegal. The trial court denied the motion, and Hollingsworth is appealing that denial.

Split sentencing is authorized by statute in Florida. § 948.01(4), Florida Statutes (1979); State v. Holmes, 360 So.2d 380 (Fla. 1978); Wilcher v. State, 388 So.2d 320 (Fla. 5th DCA 1980); Hicks v. State, 362 So.2d 173 (Fla. 1st DCA 1978).

AFFIRMED.

SHARP and COWART, JJ., concur.

      . This case concerns a true ‘‘split sentence” pursuant to § 948.01(4), Florida Statutes, and is, therefore, distinguishable from the situation discussed in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980): the technique of long-term incarceration as a condition of probation based on language in State v. Jones, 327 So.2d 18 (Fla.1976), from which Villery recedes.


text:
    Lester SAMPSON, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 81-175.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Lester Sampson, Starke, pro se.
   COWART, Judge.

Petitioner seeks a writ of habeas corpus alleging that although his conviction has been affirmed on appeal, the indictment against him was fundamentally defective in that it did not contain a statement of the time and place of the crime, citing Black v. State, 360 So.2d 142 (Fla. 2nd DCA 1978).

The indictment alleges that petitioner “of the County of Lake, and State of Florida, on the 14th day of June, in the Year of our Lord One Thousand Nine Hundred and seventy-eight, in the County and State aforesaid” committed the crime charged. This is sufficient to allege the date, State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974), and place of the commission of the crime, McElvene v. State, 105 Fla. 639, 142 So. 216 (1932); Enson v. State, 58 Fla. 37, 50 So. 948 (1909).

The petition for writ of habeas corpus is DENIED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: DANAHY, Judge.

text:
    Stephen W. GERRY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1587.
    District Court of Appeal of Florida, Second District.
    March 4, 1981.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

A jury found appellant not guilty of murder by reason of insanity. After finding appellant to be manifestly dangerous to the public, the trial court ordered his commitment to the Department of Health and Rehabilitative Services for treatment. Thereafter, pursuant to the provisions of section 394.901, Florida Statutes (1979), now superseded by chapter 80-75, Laws of Florida, the administrator of Florida State Hospital filed a report requesting an order authorizing further hospitalization, but following a hearing, a hearing officer of the Division of Administrative Hearings denied the request and recommended that the appellant be released. On June 30, 1980, appellant filed a motion with the court requesting that he be released from the state hospital and from further supervision by the Department. A hearing on the motion was set for July 30, 1980. Immediately prior to the hearing, appellant’s counsel orally moved for the appointment of experts to examine appellant. The court denied the motion to appoint experts and the motion for release. Appellant contends here that the trial court erred when it denied his motion to appoint experts. Under the particular facts of this case, we agree.

On July 18, 1980, our supreme court adopted Florida Rule of Criminal Procedure 3.218, which requires the trial court to conduct a hearing when the administrator of the state mental health facility files a report with respect to whether a defendant continues to meet the criteria for involuntary hospitalization. The rule further provides in pertinent part as follows:

Prior to any hearing held pursuant to this Rule, the court ... shall upon motion of counsel for State or defendant, appoint no fewer than two nor more than three experts to examine the defendant relative to the criteria for continued involuntary hospitalization....

Rule 3.218 was made effective retroactive to July 1, 1980.

Several days before the hearing, the office of the public defender received a copy of the new rule and appellant’s hearing counsel had just read the rule on the morning of the hearing. Under these unusual circumstances, we believe the oral motion to appoint experts made immediately prior to the hearing was timely and should have been granted. We hasten to add, however, that had the rule been in existence for a reasonable period of time prior to the hearing, an oral motion made on the day of the hearing would not have been made “prior” to the hearing within the meaning of the rule.

Accordingly, the order continuing the defendant’s confinement in the state hospital is quashed and the case is remanded with instructions to appoint experts and conduct a hearing in accordance with rule 3.218.

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

      . Rule 3.218. Hospitalization of a Defendant Found Not Guilty By Reason of Insanity
      The Department of Health and Rehabilitative Services shall admit to an appropriate facility a defendant found not guilty by reason of insanity pursuant to Rule 3.217 and found to meet the criteria for involuntary hospitalization or placement for hospitalization and treatment and may retain and treat the defendant. No later than six months from the date of admission, the administrator of the facility shall file with the court a report, with copies to all parties, which shall address the issues of further involuntary hospitalization of the defendant. If at any time during the six month period or during any period of extended hospitalization which may be ordered pursuant to this Rule, the administrator of the facility shall determine that the defendant no longer meets the criteria for involuntary hospitalization, the administrator shall notify the court by such a report with copies to all parties.
      (a) The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the facility on the issues raised thereby, and the defendant shall have a right to be present at such hearing. If, following such hearing, the court determines that the defendant continues to meet the criteria for continued hospitalization or treatment, the court shall order further hospitalization or treatment for a period not to exceed one year. The same procedure shall be repeated prior to the expiration of each additional one year period the defendant is retained by the facility.
      (b) Prior to any hearing held pursuant to this Rule, the court may on its own motion and shall upon motion of counsel for State or defendant, appoint no fewer than two nor more than three experts to examine the defendant relative to the criteria for continued involuntary hospitalization or placement by the defendant, and shall specify the date by which such experts shall report to the court on these issues, with copies to all parties.


text:
    DEPARTMENT OF REVENUE OF the STATE OF FLORIDA, a state agency, and Randy Miller, its Executive Director, Petitioners/Appellants, v. Ronald J. SCHULTZ, as Pinellas County Property Appraiser, Respondent/Appellee.
    Nos. 80-2101, 80-2116.
    District Court of Appeal of Florida, Second District.
    March 4, 1981.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, and J. Terrell Williams, Tallahassee, for petitioners/appellants.
    W. Gray Dunlap, County Atty., and Patrick T. Maguire, Asst. County Atty., Clear-water, and Benjamin K. Phipps, Tallahassee, for respondent/appellee.
   PER CURIAM.

We are asked to review an order which the trial court entered below subsequent to its order denying the appellants’ motion for change of venue. Recently, in a separate appeal this court reversed the order denying the motion for change of venue. Department of Revenue v. Schultz, 392 So.2d 926 (Fla.2d DCA 1980). Therefore, we vacate the order of November 6,1980, without prejudice to the parties to seek such interim relief as they may deem advisable in the appropriate forum. See Straughn v. Grootemaat, 291 So.2d 669 (Fla.2d DCA 1974); Dickinson v. Grootemaat, 291 So.2d 669 (Fla.2d DCA 1974).

BOARDMAN, Acting C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    LOUISIANA RESOURCES COMPANY v. Matilda Gray STREAM.
    No. 61205.
    Supreme Court of Louisiana.
    April 11, 1978.
   PER CURIAM.

Under the facts as were fully developed at the argument of this case, we find that the writ of certiorari, or review, was improvidently granted.

Without approving the court of appeal’s interpretation of “necessary purpose,” we recall the writ.