author: PER CURIAM. SHARP, Judge,

text:
    Gregory L. FLEMING, Appellant, v. AQUASLIDE ‘N’ DIVE, INC., Appellee.
    No. 83-683.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.
    Rehearing Denied May 15, 1984.
    Sidney H. Parrish and Paul B. Irvin, of Troutman, Parrish, Williams & Blankenship, P.A., Winter Park, for appellant.
    Herbert R. Kanning, P.A., Jack W. Shaw, Jr., P.A., Mathews, Osborne, McNatt, Go-belman & Cobb, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED.

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

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent because I think summary judgment should not have been granted. The record presented material questions of fact concerning Aquaslide’s duty to provide warnings and instructions as to the size and depth of a pool necessary to ensure the safe use of the diving board involved in this diving accident. There was also a question whether the warnings and instructions which were provided were adequate.

Counsel for appellee conceded that the diving board involved in this case was safe only if used by children, but hazardous if used by adults, when used with the size pool where Fleming was injured. The only party in this case who had the information about how far the board would spring an average-sized adult or child was the manufacturer, Aquaslide. The need for warnings, or the adequacy of those given, are properly questions for the jury. Macmurdo v. Upjohn Company, 444 So.2d 449 (Fla. 4th DCA 1983); Giddens v. Denman Rubber Manufacturing Company, 440 So.2d 1320 (Fla. 5th DCA 1983); Robinson v. Broward County School Board, 405 So.2d 274 (Fla. 4th DCA 1981).


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    William Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1356.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.
    Rehearing Denied May 18, 1984.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst, Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from his conviction of manslaughter. We affirm.

Defendant argues that error occurred because he was not present when the trial court discussed with counsel for the defendant and counsel for the state the nature of the response to be made by the court to certain requests by the jury during its deliberations. The jury requested a copy of the indictment and the playing of certain taped statements which had already been played to the jury. The court provided the copy of the indictment, with allegations of premeditation deleted because a' verdict for defendant on premeditated murder had already been directed. The court also provided the jury with a playing of the taped statements.

Under certain language of Ivory v. State, 351 So.2d 26 (Fla.1977), defendant’s absence during the discussion would appear to be prejudicial error. However, in contrast to the facts of Ivory, defendant in the case before us was present when the trial court responded to the jury requests, and defendant’s counsel participated in the discussion as to how to respond. Additionally, during the discussion defendant’s counsel made no objection to defendant’s absence. The issue is raised for the first time on appeal. In Ivory it was stated that defendant's absence was prejudicial error, but Ivory did not state that defendant’s absence would be reversible error in all eases. In Ivory the defense counsel made a motion for mistrial, and the Ivory opinion does not discuss the matter of a waiver of an objection to defendant’s absence. We do not believe that Ivory requires a finding of reversible error under the facts of this case. We find that defendant did not preserve this argument for appeal. See Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See also People v. Wright, 124 Ill.App.2d 223, 260 N.E.2d 265 (1970); Daugherty v. State, 225 Ga. 274, 168 S.E.2d 155 (1969); People v. Baker, 164 Cal.App.2d 99, 330 P.2d 240 (3d Dist.1958).

Defendant also argues that allowing the jury to hear a tape recording of his questioning by a police officer, during which the police officer referred to several statements by defendant’s co-perpetrator, violated defendant’s constitutional right to confront and cross-examine his accusers, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, only defendant was on trial in the proceeding below. The statements were not by a nontestifying codefendant in a joint trial. No violation of the Bruton rule has been shown. The officer’s references to the co-perpetrator’s statements were inadmissible hearsay, however, which raises the question of whether the admission of the testimony was harmful error. We find that the error was harmless in light of defendant’s admissions in his own confession.

AFFIRMED.

HOBSON, A.C.J., and RYDER, J., concur.


author: HERSEY, Judge. LETTS, Judge,

text:
    Catherine A. REECE, Appellant, v. William K. REECE, Jr., Appellee.
    No. 83-1789.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied June 4, 1984.
    William H. Stolberg of Shankweiler & Stolberg, Fort Lauderdale, for appellant.
    John B. Di Chiara of Di Giulian & Di Chiara, P.A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

The trial court, in a proceeding for dissolution of marriage, referred the matter of temporary support to a general master. Each of the parties filed a request for temporary support and a financial affidavit. After a hearing the general master made findings of fact and recommendations. Neither party filed exceptions. The trial court, without hearing, reduced the amount of child support from $700.00 per month, recommended by the general master, to $500.00 per month. The wife appeals.

Customarily a master makes findings of fact, draws conclusions from those findings based upon applicable law, and makes recommendations to the trial court.

The findings of fact and conclusions drawn therefrom may not be rejected by the trial court in the absence of clear error. To put it another way, the role of the trial court in reviewing the findings and determinations of the master are similar to those of the appellate court in reviewing a trial court’s findings and determinations. Harmon v. Harmon, 40 So.2d 209 (Fla.1949); Matos v. Matos, 421 So.2d 180 (Fla. 2d DCA 1982). This rule is subject to the observation that it is the trial judge “who under the law is charged with the duty and responsibility of making findings of facts and entering the final decree.” U.S. Casualty Co. v. Md. Casualty Co., 55 So.2d 741, 744 (Fla.1951). It is also recognized that the trial court may come to different legal conclusions than the master, based upon the master’s findings of fact, without committing reversible error. Bergh v. Bergh, 127 So.2d 481 (Fla. 1st DCA), cert. denied, 133 So.2d 323 (Fla.1961).

In this case there were no exceptions to the master’s findings and the trial court did not have a transcript of the hearing before the master for guidance in evaluating the master’s report. Our. examination of the report discloses no basis for a determination that any of the master’s findings, conclusions, or recommendations were clearly erroneous. Under the circumstances we conclude that the trial court abused his discretion in reducing the amount of child support. Dent v. Dent, 438 So.2d 903 (Fla. 4th DCA 1983).

Because we need not, we do not decide whether the trial court must provide a hearing before departing from the recommendations contained in a master’s report. Rule 1.490(h), Florida Rules of Civil Procedure provides for the filing of exceptions to the master’s report and requires a hearing where exceptions are filed. It would be anomalous if, in the absence of exceptions as here, the trial court could ex parte accomplish what, had an exception been filed, could only result after notice and hearing. It would be judicious for the trial court under such circumstances to permit the parties to be heard after reasonable notice where departure from the master’s recommendations is contemplated.

We reverse the order of temporary support and remand to the trial court with instructions to enter an order based upon the recommendations of the general master.

REVERSED and REMANDED.

ANSTEAD, C.J., concurs.

LETTS, J., concurs specially.

LETTS, Judge,

specially concurring:

I concur in conclusion only.


author: RYDER, Acting Chief Judge.

text:
    Oscar BLACKWELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-426.
    District Court of Appeal of Florida, Second District.
    April 18, 1984.
    Rehearing Denied May 17, 1984.

      Jerry Hill, Publie Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Oscar Blackwell appeals from his convictions and sentences for three counts of attempted armed robbery, one count of conspiracy to commit armed robbery, one count of carrying a concealed firearm, and one count of felon in possession of a firearm. Several issues have been raised in this appeal. We find that the trial court improperly retained jurisdiction over one-third of each sentence imposed, and mistakenly failed to provide jail time credit on one of the sentences imposed. In all other respects, we affirm.

The trial court entered various sentences and retained jurisdiction over Blackwell for one-third of each sentence. This was improper under section 947.16(3), Florida Statutes (1981), which limits the jurisdiction which the trial court may retain over Blackwell to one-third of the total consecutive sentences imposed. We therefore strike the various provisions of retention of jurisdiction and remand this case for reconsideration of the period of retention in accordance with section 947.16(3), Florida Statutes (1981). See Wicker v. State, 438 So.2d 399 (Fla. 2d DCA 1983); Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983).

We also strike the retention of jurisdiction over one-third of the sentence imposed for Blackwell’s conviction as a felon in possession of a firearm. § 947.16(3), Fla.Stat. (1981). See Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984).

The trial court ordered that Blackwell’s sentence for felon in possession of a firearm run concurrent with his sentence for one count of attempted armed robbery. The trial court allowed Blackwell 319 days of jail time credit on the sentence for attempted armed robbery, but did not allow jail time credit on the concurrent sentence for felon in possession of a firearm. Not allowing jail time credit on the concurrent sentence was improper. Martin v. State. Upon remand, the trial court shall correct Blackwell’s sentence for felon in possession of a firearm to reflect 319 days jail time credit as to that sentence.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

SCHOONOVER and LEHAN, JJ., concur.


author: WESSEL, JOHN D., Associate Judge.

text:
    Gregory D. ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 82-288.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      William G. Crawford, Jr., Fort Lauder-dale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   WESSEL, JOHN D., Associate Judge.

GREGORY D. ROLLE, Appellant, appeals from a judgment and conviction of First Degree Murder and sentence of life imprisonment.

During the trial a court deputy was notified by a juror (Joyce Holmes) that she recognized the main prosecution witness, Charles Wright. The Trial Court brought the juror from the presence of the other jurors and she was questioned by the Court and counsel for the appellant and the State. No motion for mistrial was lodged with the Court by either the State or defense counsel. Subsequently to the trial, the appellant in his amended motion for new trial raised the issue of the jury’s consideration of matters not in evidence.

At a post trial evidentiary hearing the juror, Joyce Holmes, testified she thought she recognized the witness Wright and thought he was her former student. She also indicated she had attended a Church where Wright’s grandfather was the minister (Wright had testified that his father' was a minister), and that it was possibly mentioned while other jurors were present.

Another juror corroborated this testimony and further indicated that Wright, the State’s main witness, had “gone down-hill” according .to Holmes.

A third juror confirmed this testimony.

The appellant failed to move for mistrial during the trial, and, accordingly, should be precluded from complaining. Clark v. State, 363 So.2d 331 (FL 1978). Also,- a defendant should not be allowed to posture himself in a position so that it may be “heads he wins, tails you lose.” Walt Disney World Co. v. Althouse, 427 So.2d 1135 (Fla. 5th DCA 1983); Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA 1981).

Additionally, the appellant had an opportunity to request of the Court the replacement of juror Holmes with one of the two alternates, which the appellant failed to do. Orosz v. State, 389 So.2d 1199 (Fla. 1st DCA 1980)

Finally, the appellant argues that the evidence received by the jury was improper and inherently prejudiced so as to cast an onus on the State to establish that the jury was free of prejudice by this foreign evidence. Russ v. State, 95 So.2d 594 (FL 1957), says:

“If the statements by the juror are such that they would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced for the law presumes he was. But it should be clearly understood that not all statements by a juror concerning evidence not properly before the jury will vitiate a verdict, even though such conduct may be improper. It is necessary either to show that prejudice resulted or that the statements were of such character as to raise a presumption of prejudice.” (Pp. 600-601)

Of course it is improper for jurors to consider or have available to them information of any source other than that appertaining to the case before them, and except which is a product of an open session in court with all parties present and before the trial judge. Nor should deliberations include matters not presented in evidence, or suppositions, rumor or street-knowledge. A jury should confine its considerations of this verdict to those matters borne out by the evidence with the application of the law charged, sound judgment, common sense and experience of every day affairs. In the instant case the trial judge had the opportunity to review the entire matter including an extensive evidentiary hearing on the issue of probable influence on the jury. We find that the record supports his exercise of discretion and his conclusion denying the appellant’s motion for new trial on the basis of jury misconduct.

The appellant next contends the trial judge denied his amended motion for new trial based on newly discovered evidence, and, accordingly, abused his discretion. We disagree. The testimony of Stuart Cameron was adduced at the eviden-tiary hearing on this motion and the trial of the co-defendant Adderly. The trial Court concluded:

(1) Much of the testimony of Cameron would not be admissible at a new trial because of the witness’ invocation of his 5th Amendment rights. See Baker v. State, 336 So.2d 364, (FL 1976). To a great extent it was mere speculation as to what Cameron would testify at a retrial of the appellant.

(2) The trial court had the unique opportunity to be present during the trial of the appellant and the separate trial of the co-defendant Adderly, and believed the same result would accrue and articulated in detail his reasons. Also see Brown v. State, 439 So.2d 872 (Fla.1983).

Accordingly, we find no abuse of discretion in denying appellant’s motion for new trial as to the newly discovered evidence of Stuart Cameron.

This Court has carefully considered the other points raised on the appeal and finds them without merit and, therefore, affirms the trial court’s decision on these issues.

AFFIRMED.

ANSTEAD, C.J., and HURLEY, J., concur.


author: PER CURIAM. SMITH, RUPERT JASEN, Associate Judge,

text:
    STATE of Florida, Appellant, v. Gregory GONZALEZ, Appellee.
    No. 82-1969.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied June 6, 1984.

      Jim Smith, Atty.,Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Marcy Karr Allen, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals from an order discharging the defendant based on speedy trial grounds. On April 19, 1982, the defendant filed a pro se demand for speedy trial pursuant to Rule of Criminal Procedure 3.191(a)(2) and (c). The State Attorney and defense counsel appeared before the trial court and argued the State's motion to strike the pro se demand for speedy trial in conjunction with a defense motion for discharge. The trial court denied the motion to strike and granted the motion for discharge.

The sole issue presented to the trial court was whether the defendant’s pro se pleading was a bona fide demand for an immediate trial. The state contends that the defendant had not diligently investigated his case and was not actually prepared to go to trial within five days as required by the rule. The trial court rejected the State’s position and found that the defendant made a valid demand for speedy trial, and that he wished to actually proceed to trial. This case is similar to State v. Fives, 409 So.2d 221 (Fla. 4th DCA 1982), where we were presented with a speedy trial question which was dependent upon which view of the facts had been accepted by the trial court. In Fives, the appellee contended she was arrested in Dade County on October 16, 1980, and the appellant asserted a mere detainer rather than an arrest had been effected at that time. As was stated in Fives, at page 222:

Clearly, this ease needs an evidentiary hearing to establish the actual facts. For that purpose we reverse the order appealed from and remand the cause to the trial court for an evidentiary hearing on the motion for discharge.

In the instant case, counsel appeared before the trial court and argued the matter but did not present evidence. The defendant was present in the courtroom but did not testify. We reverse and remand the matter to the trial court for an evidentiary hearing.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.

SMITH, RUPERT JASEN, Associate Judge, concurs specially with opinion.

SMITH, RUPERT JASEN, Associate Judge,

concurring specially:

This case comes to us on appeal by the State of Florida from an order of the trial judge discharging the appellee, Gregory Gonzalez, on September 10, 1982.

Gonzalez was serving a sentence of five (5) years for attempted burglary, having been sentenced and convicted on October 30, 1979. He escaped from the Belle Glade Penal Institution on July 3, 1980. He was apprehended and returned to prison on March 24, 1982. On July 21, 1980, the State Attorney for the Fifteenth Judicial Circuit filed an information against Gonzalez for “escape.” On April 19, 1982, the defendant filed a pro se demand for a speedy trial under Florida Rules of Criminal Procedure 3.191. The State Attorney’s Office from the Fifteenth Judicial Circuit attempted to have the subject Gonzalez returned from Lake Butler to the Fifteenth Judicial Circuit but was unable to do so. The State filed a Motion to Extend Time of the trial due to the fact that Gonzalez had been determined to be a chronic schizophrenic by the prison psychiatrist. The trial judge entered an oral order extending the time for the speedy trial which was done on June 25, 1982. The trial court in its September 10, 1982 Order determined that under the Speedy Trial Rule, subsection (d)(2), “The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured.” The trial court subsequently determined that June 25, 1982 simply fell after the 60 day period and, therefore, the extension was not valid.

This case is interesting from the standpoint that the State Attorney and the defense counsel from the Public Defender’s Office got into a legal discourse with the trial court as to whether the pro se demand for speedy trial was a bona fide demand by Gonzalez. No one addressed the question as to what the proper date should be for the commencement of the running of the Speedy Trial Rule.

In reviewing the record it is clear that, as a result of Gonzalez’s escape, an information was filed on July 21, 1980 and that based on that, an arrest warrant was issued on July 22, 1980, apparently, all concerned concluded that March 24, 1982, the date of Gonzalez’s recapture, was the date that the 180 day Speedy Trial Rule commenced, but a review of the Speedy Trial Rule is clear that for purposes of the Rule, “A person is taken into custody when the person is arrested as a result of the conduct of a criminal episode which gave rise to the crime charged .... ” This is set forth clearly in sub-paragraph (a)(4) of the Rule. The key date of Gonzalez’s arrest under the outstanding arrest warrant was June 29, 1982, when the arrest warrant was executed by a deputy sheriff of Palm Beach County, Florida. Therefore, since Rule 3.191(a)(1) states that a person charged with a crime by Information or Indictment constituting a felony (of which escape is a second degree felony), shall be brought to trial within 180 days of the time set in (a)(4), the 180 days does not commence to run until that person is arrested, which arrest can be consummated by serving a notice to appear in lieu of physical arrest. Here, Gonzalez was not arrested under the escape charge until June 29, 1982, therefore, a demand for speedy trial under (a)(2) cannot be invoked or precipitated by a person until the 180 day period begins to run. I would determine that the 180 day period began to run June 29, 1982, and, therefore, the pro se demand for a speedy trial was, to say the least, premature. The trial court was in error in discharging Gonzalez under his pro se demand for a speedy trial inasmuch as his demand would not have been effective until the warrant for escape was served on him.

This opinion simply states that one cannot precipitate a speedy trial upon demand prior to the time that one is arrested upon information lodged against him and the 180 day period begins to run. The fact that Gonzalez was apprehended and returned to prison to continue serving his initial sentence does not necessarily give rise to the timetable set out in Rule of Criminal Procedure 3.191; the state could have merely required him to serve his original sentence without being awarded gain time for good behavior [See Section 944.28, Florida Statutes (1979)], or not prosecuted Gonzalez for escape until much later, before the statute of limitation ran, his return to custody was simply to serve his sentence and not as a “physical arrest”, as defined in (a)(4), which states a person is taken into custody when arrested, “as a result of the conduct or criminal episode which gave rise to the crime charged,” that date was June 29, 1982, when the arrest warrant was executed for “escape” under Section 944.40, Florida Statutes (1979).

This set of facts is much like the “detain-er” cases which are set out in State v. Fives, referred to in the per curiam opinion. There, the fact to be decided by an eviden-tiary hearing is whether Fives was detained or formally arrested, if detained, the 180 day period does not commence to run, if formally arrested, the 180 day period begins to run; as the First District Court of Appeal stated in Williams v. Eastmoore, 297 So.2d 572:

We hold that under F.R.Cr.P. 3.191(a)(1), the 180 day time period in which the state had to bring relator to trial commenced to run when he was formally arrested on the Putnam County charges.

The First District Court of Appeal’s rationale was adopted by the Florida Supreme Court in 1977 in the case of State of Florida v. Bassham, 352 So.2d 55, which states:

In O’Bryan [v. State, 326 So.2d 83], supra, the First District Court of Appeal reiterated the proposition that “[t]he de-tainer warrant is not equivalent for purposes of speedy trial considerations, to an arrest on indictment or information.” This Court denied a petition for writ of certiorari seeking review of this decision. Accordingly, we hold that a detainer placed by one county for a prisoner held by another county is not considered custody within the contemplation of the speedy trial rule so as to commence the running of the speedy trial time.

It is also to be noted that contemporaneous with the Supreme Court decision above, the Fourth District Court of Appeal was receding from its position that the 180 day rule commences to run upon defendant’s detainer, rather than his formal arrest. See Eaddy v. State of Florida, 352 So.2d 98. Thus, Gonzalez’s incarceration at the state prison in Lake Butler is analogous to a defendant’s detainer in the above cited cases.

The question of whether the speedy trial demand filed by Gonzalez was bona fide or not in this particular case is irrelevant in my view.


author: DELL, Judge. HERSEY, Judge,

text:
    Herbert GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2237.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied May 31, 1984.

      C. William Laystrom, Jr., of Allsworth, Doumar, Padula, Cazel & Curtis, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Herbert Gordon appeals from a judgment and sentence for second degree murder.

Appellant and the victim, while drinking at appellant’s cousin’s apartment, engaged in a conversation which ultimately turned to the topic of suicide. Appellant had brought a gun to the apartment which he had placed on a shelf after removing a number of bullets. The evidence conflicts as to the sequence of events which ended in the victim’s death. Appellant testified that he and the victim got up from the table and he passed the gun to her, but never fully relinquished possession, and that when she pulled it towards her, it discharged. Appellant’s cousin, Mincey, testified that appellant grabbed the gun off the shelf, put it to the victim’s temple, and it went off. Evelyn Kent, Mincey’s fiancee, testified that appellant put a bullet in the gun and placed it beside the victim’s head just before she heard the shot. Neither Mincey nor Kent was looking at the victim at the moment the gun fired and both had given statements to the police which to some varying degree conflicted with their trial testimony. After considering this testimony and the • other evidence presented, the jury found appellant guilty of second degree murder.

Appellant raises eight points on appeal. We need address only two because they are dispositive. First, appellant contends the statements of the trial judge constituted an impermissible comment on his testimony and veracity. Second, appellant contends the trial judge improperly read the jury instructions relating to his plea of not guilty.

During defense counsel’s redirect examination the following colloquy took place between counsel and the trial judge:

Q. In fact, you have been consistent with what your statement is except for the demonstration?
A. Right.
MRS. HOAGUE: Objection, Your Hon- or, that’s not true.
THE COURT: Not only that, it’s very leading. The objection is overruled and it isn’t true.
MR. CAZEL: Judge, I would never lead a witness.
THE COURT: No, not only that, but it isn’t. So I’ll sustain it on both grounds.
MRS. HOAGUE: Judge, there have been several prior inconsistent statements.
THE COURT: The objection is sustained.
MR. CAZEL: Judge, I’m going to object to her making that comment.
THE COURT: I’ll sustain that objection. Let’s go on.

Appellant contends the statements of the trial judge discredited his testimony and that his testimony was crucial because the other witnesses did not see what happened at the moment the gun discharged.

Initially, appellee asserts that appellant did not make a contemporaneous objection and therefore did not preserve the issue for appeal. However, the record reveals that shortly after the exchange, trial adjourned for the day and the next morning appellant moved for a mistrial based on the judge’s comments. Under the circumstances, we find appellant adequately preserved the question for review.

Appellee also argues that the judge’s ' statements refer to the question posed by defense counsel, rather than the answer given by appellant. Further, that the trial judge properly rebuked counsel for an improper examination of a witness.

We find that the jury could have inferred that the judge’s statements related to appellant’s testimony and that any such comments, even if they were intended solely as a rebuke of counsel, should have been made outside the presence of the jury. In Hamilton v. State, 109 So.2d 422 (Fla. 3d DCA 1959), the court stated as follows:

The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled.

Id. at 424; see also Kellum v. State, 104 So.2d 99 (Fla. 3d DCA 1958).

Since the court’s remarks in this case could have been interpreted by a jury as a comment on appellant’s veracity and therefore influenced their deliberations, we find the trial court erred. However, we do not find these statements alone warrant reversal.

Appellant urges this court to consider the judge’s comments in conjunction with his misreading of one of the jury instructions:

The defendant has entered his plea of guilty to the offense as charged in this Information. This means that you must presume or believe that the defendant is innocent. That presumption stays with the defendant as to each material allegation in the Information and through each stage of the trial until it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. [Emphasis added.]

Appellant argues that the combined effect of this misreading and the prior statements made by the court warrant a new trial. We agree.

In this case, neither of the incidents complained of by appellant is sufficient, standing alone, to warrant reversal. Their cumulative effect, however, constitutes prejudicial error. See Perkins v. State, 349 So.2d 776 (Fla. 2d DCA 1977). Because the other witnesses did not observe the victim’s actions at the time the gun discharged, appellant’s testimony and his credibility were crucial. We find the combined effect of the judge’s statements and the misreading of the jury instruction sufficient to influence the jury's deliberations, thereby depriving appellant of a fair trial. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

BERANEK, J., concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

With all due respect to the majority view I dissent, because: the trial court’s comment was provoked by defense counsel and referred to counsel’s question, not the answer. Misreading of the instruction was harmless error. Neither point was properly preserved for appeal. I would affirm.


author: PER CURIAM. LETTS, Judge,

text:
    Sam PATRONA d/b/a Patrona’s Tile, Appellant, v. Richard HAMMELL and Joan Hammell, Appellees.
    No. 83-1067.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Donald M. VanDusen and Peter J. Snyder of the Law Offices of D.M. VanDusen, Boca Raton, for appellant.
    Linda Cargill Smith of Gorman & Hor-vath, P.A., North Palm Beach, for appel-lees.
   PER CURIAM.

AFFIRMED.

HERSEY and HURLEY, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I would reverse based on General Development v. Gossett Construction, 370 So.2d 380 (Fla. 2d DCA 1979).


author: PER CURIAM.

text:
    Stephen V. KELLY and Shirley Kelly, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEARWATER, n/k/a Fortune Federal Savings and Loan Association, Appellee. Charles D. BOLDIN and Diana Dee Simmons, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEARWATER, n/k/a Fortune Federal Savings and Loan Association, Appellee.
    Nos. 83-2220, 83-2269.
    District Court of Appeal of Florida, Second District.
    May 11, 1984.
    David B. Smitherman of Wilder & Thacker, Clearwater, for appellants Kelly.
    Bruce M. Harlan of Bruce M. Harlan, P.A., Clearwater, for appellants Boldin and Simmons.
    R. Timothy Peters of Goza, Hall & Peters, P.A., Clearwater, for appellee.
   PER CURIAM.

Affirmed. Stockman v. Burke, 305 So.2d 89 (Fla. 2d DCA 1974).

BOARDMAN, A.C.J., and DANAHY and LEHAN, JJ., concur.


author: BASKIN, Judge.

text:
    L.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1124.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.

      Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

We find the evidence insufficient to support the trial court’s adjudication of delinquency based upon loitering and prowling. The record discloses that fourteen year old L.S. and his two companions were arrested after police officers observed them crouching in the bushes near an expressway exit, an area known as the site of numerous robberies and purse snatchings. The state, however, has failed to show how crouching in the bushes near an expressway constitutes an unusual activity for a fourteen year old boy. In the Interest of O. W., 423 So.2d 1029 (Fla. 4th DCA 1982). Accordingly, we reverse the order finding L.S. guilty of loitering and prowling and remand for the entry of orders consistent with this opinion.

Reversed and remanded.


text:
    L.C.S., a juvenile, Appellant, v. Doris CAPRI, Superintendent, Dade County Juvenile Detention Center, Appellee.
    No. 84-819.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Bennett H. Brummer, Public Defender, and Robin H. Green, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Reversed and remanded. See L.S. v. State, 449 So.2d 1305 (Fla. 3rd DCA 1984).


author: COBB, Judge.

text:
    Kenneth Raymond MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1559.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

With some misgiving, we affirm Marshall’s, judgment and sentence. That misgiving is occasioned by the fact that the record before us indicates prosecutorial misconduct, including contact and negotiation with the defendant by an assistant state attorney without notice to the defendant’s counsel of record.

Nevertheless, there is no question here as to the guilt of the defendant, which he acknowledged in a nolo contendere plea before the trial court and which readily could have been established even in the absence of the aforesaid misconduct. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); Lawrence v. State, 357 So.2d 424 (Fla. 1st DCA 1978), cert. denied, 367 So.2d 1125 (Fla. 1979), cert. denied, 444 U.S. 847, 100 S.Ct. 94, 62 L.Ed.2d 61 (1979).

AFFIRMED.

ORFINGER, C.J., and LEE, R.E., Associate Judge, concur.


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

text:
    VIP TOURS OF ORLANDO, INC., Appellant, v. STATE of Florida, DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 83-118.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.

      A. Clifton Black, Orlando, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

VIP Tours, Inc. appeals from an order of the Division of Employment Security finding that it was an employer of tour guides for purposes of unemployment compensation.

Cynthia Hoogland filed a claim for benefits with the Department of Labor and Employment Security. Hoogland performed tour guide services for VIP Tours between July, 1980, and March, 1981. The crucial question regarding Hoogland’s claim is whether she was an “employee” of VIP Tours or an independent contractor.

The Department found that the tour guides were employees and hence entitled to unemployment compensation benefits because: (1) they worked under the name of the tour agency; (2) they used vehicles provided by the agency; and (3) they had to follow the agency’s instructions.

VIP operated a tour business which arranged tours of attractions for visitors to Central Florida. The tours were conducted by guides such as Hoogland who worked on a per job basis. VIP used the guides only when it had a need for their services and the guides were free to accept or reject a particular assignment. If they accepted work, the guides were instructed where to report and given instructions concerning the particular job.

VIP furnished all vehicles used by the guides and paid all expenses of the tour. The tour guides maintained a mileage log and a valid chauffeur’s license. The guides were required to wear uniforms with the VIP logo and were supervised by VIP’s general manager, to the extent that he informed them of their assignments and saw to it that they departed on time. The general manager could also discipline the guides, such as by removing them when complaints were received about their work.

The guides were not paid a set salary or fringe benefits, nor did VIP deduct withholding or social security taxes from their pay. The guides were paid on a per-tour basis, based on an hourly rate times the estimated time it took to complete a particular tour. This amount was paid regardless of the time it took to finish the particular tour and no overtime was paid.

The guides considered themselves to be independent contractors and were free to work for other tour services. Hoogland worked for VIP twenty-nine times in a nine-month period and during that period she also worked for four other companies. She reported her income to the Internal Revenue Service as “non-employee” income.

In Cantor v. Cochran, 184 So.2d 173 (Fla.1966), the supreme court approved the test set out in Restatement (Second) of Agency, § 220 (1958) for determining whether one is an employee or independent contractor:

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relationship of master and servant; and
(j) whether the principal is or is not in business.

It has been said repeatedly that of all the factors, the right of control as to the mode of doing the work is the principal consideration. Herbert Hayes Yacht & Ship Sales, Inc. v. Lovell, 406 So.2d 1259 (Fla. 4th DCA 1981); Collins v. Federated Mutual Implement & Hardware Ins. Co., 247 So.2d 461 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971). See also A Nu Transfer, Inc. v. Department of Labor and Employment Sec., 427 So.2d 305 (Fla. 3d DCA 1983).

For instance, in United States Telephone Company v. State, Department of Labor and Employment Security, 410 So.2d 1002 (Fla. 3d DCA 1982), the court found that telephone company sales personnel were independent contractors and not employees. In that case, United States Telephone Company sold and installed office telephones. It utilized sales personnel to work on a commission to obtain customers. The company contracted with each salesman individually and only engaged in a verbal contract. The company provided sales training and product familiarization, office space and telephone service. The salesmen were also supplied with secretarial and clerical assistance. The salesmen were paid a draw against commission and the commission rate was individually contracted with the company. No social security, withholding or'other taxes were withheld. The company had no supervisor or manager over the salesman and exerted little, if any, direct supervision over the salesmen. The salesmen were responsible for their own transportation and related expenses, had no set hours to work and no sales quotas. The court concluded that United States Telephone Company was concerned with profits and exerted no effective control over its salesmen.

In Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State of Florida, Dept. of Labor and Employment Security, 407 So.2d 249 (Fla. 4th DCA 1981), Cosmo was a licensed employment agency which contracted with persons licensed as employment clerks for their services as employment counselors. The employment contract required two weeks training without pay. Following this, each counselor was assigned a geographical area of primary responsibility and was provided with secretarial help, office space and phone service; the counselors, however, were required to pay for these benefits. The counselors set their own work hours and submitted weekly reports to Cosmo. Either party could cancel the contract without cause at any time. The court stated that Cosmo exerted no control over the details of the counselors’ work, but rather, was concerned only with the end result, i.e., profits earned. As such, they would properly be categorized as independent contractors, rather than as employees.

In Florida Gulf Coast Symphony, Inc. v. Department of Labor and Employment Security, 386 So.2d 259 (Fla. 2d DCA 1980), the Department found that individual musicians and the symphony conductor were employees of the Florida Gulf Coast Symphony and the symphony was ordered to pay $28,500 to the Unemployment Compensation Fund. The Second District reversed, stating that although the Department employed the correct criteria, {Restatement (Second) of Agency, § 220) it misapplied the facts to that criteria. Specifically, the court was impressed by the fact that the musicians were engaged in a distinct occupation, were considered by the symphony to be independent contractors, spent more than two-thirds of their time in activities over which the symphony had no control whatsoever, were responsible for the manner in which musical effects were achieved, supplied their own instruments, received the bulk of their income from sources other than the symphony, were paid on a per-job basis, and were free to pursue other job opportunities in the music field at their discretion.

In the instant case, VIP had no right of control over the tour guides other than to require them to show up at a particular place at a particular time wearing the VIP uniform and to travel in VIP transportation. These latter two factors appear to have been designed to facilitate identification of the guide and control insurance liability in transporting tourists to and from attractions. VIP had little interest in the details of the guides’ work as is illustrated by the fact that the guides controlled the number of hours spent at a particular attraction and the nature of the tour at each exhibit. See Hilldrup Transfer & Storage of New Smyrna Beach, Inc., v. State, Department of Labor, 447 So.2d 414 (Fla. 5th DCA 1984). In addition, the guides were free to contract with other tour companies, as Hoogland did, and could accept or reject any assignment, factors further indicating a lack of control by VIP over the guides. Hilldrup.

Other factors set out in the Restatement also point toward independent contractor status here. The tour guides were engaged in a distinct occupation. They worked and were paid on a per-job basis. Both VIP and Hoogland considered the guides to be independent contractors.

In summary, we find that Hoogland was an independent contractor and accordingly REVERSE the Division’s order.

DAUKSCH and COBB, JJ., concur.

      . This need was frequently based on the guide's fluency in a particular foreign language.


text:
    Jack L. PHILLIPS, Appellant, v. Carolyn Franklin PHILLIPS, Appellee.
    No. 83-540.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Michael E. Hamlin, Winter Park, for appellant.
    Salvatore R. Scarito, Orlando, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

The husband appeals from a judgment denying his petition to modify a previously entered order regarding child custody and support. This order, in which the wife was awarded $500 per month as child support, apparently contemplated that the parties’ son would reside with the mother. However, at the hearing on the husband’s petition for modification, it was clear that the son was living on his own in a trailer provided by the father. In these circumstances, the award of child support should have been reduced to the amount required to meet the needs of the two younger children during their visitation periods with their mother. Accordingly, we reverse the judgment and remand the case with directions to reduce the child support to an appropriate amount.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . The court had previously found that the wife required the financial assistance of the husband to provide for the children during her custody times with them.


text:
    Elliott Keith ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-976.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div. Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Anderson’s probation was revoked for his failure to return to the Probation and Restitution Center in Duval County after being permitted to go to St. Augustine to seek employment. Anderson appeals from the order of revocation contending the court erred by failing to give him credit for time served at the probation center.

Section 921.161(1), Florida Statutes (1983) requires that a defendant be credited for time spent “[i]n the county jail before sentencing.” In Pennington v. State, 398 So.2d 815, 817 (Fla.1981), the supreme court refused to extend the “plain language” of section 921.161(1) to require sentence credit for probationary order restrictive conditions including time spent in “halfway houses, rehabilitative centers, and state hospitals.” The court explained that the purpose of these centers is structured rehabilitation and treatment, not incarceration.

Pennington involved time spent in a drug rehabilitation center, but a First District case, Turner v. State, 395 So.2d 1242 (Fla. 1st DCA 1981), which came out just before Pennington and is consistent with that case is on point here. In Turner, the court held that a probationer who resided at the Men's Probationers Restitution Residence Center in Jacksonville was not entitled to credit for the time he spent there prior to his sentence to prison for probation violation. The court noted that the probationer was free to leave the Center every morning and remain at liberty until he returned each night and that the limited restrictions placed on him at the Center clearly differed from confinement in the county jail.

Here, Anderson has not shown that the Center is anything but a halfway house or rehabilitative center. Therefore, we affirm the conviction and sentence.

AFFIRMED.

ORFINGER, C.J., and COBB, J., concur.

      . Pennington appears to reject Sims v. State, 369 So.2d 431 (Fla. 2d DCA 1979) wherein the Second District held that a defendant is entitled to credit for any time during which he is incarcerated as a condition of probation. The court stated that incarceration exists where the defendant is confined in a governmental institution and his liberty is circumscribed to the extent that he is not free to leave without official permission.


text:
    Janet S. ALLENDORFER, Appellant, v. Sharon Anne WOOD, et al., Appellees.
    No. 83-1073.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Jay M. Levy of Hershoff & Levy, Miami, for appellant.
    D. Andrew DeBevoise of Taraska & Hill, P.A., Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Allendorfer appeals from an order dismissing her action for failure to comply with a discovery order.

On September 16, 1982, the defendants served Allendorfer with interrogatories and a request to produce. Defendants later moved to compel answers. On November 17, 1982, the court entered an order requiring Allendorfer to comply with all outstanding discovery requests. Allendorfer filed answers to interrogatories on the next day. Four days later, defendants moved to compel discovery, alleging that the answers to interrogatories were evasive in that they directed defendants to see certain medical records which were not produced. The defendants further alleged that the records which were furnished impeached some of Allendorfer’s answers.

On December 28, 1982, the court entered an order on the motion finding that the inadequacy of the answers may have been the result of Allendorfer’s confinement in a drug abuse treatment program. Allendor-fer was then ordered to furnish the names of all physicians and hospitals furnishing services to her and to furnish an affidavit from her treating physician as to her present condition including whether she was capable of furnishing competent answers to the interrogatories, consulting with counsel and responding to depositions.

Allendorfer served a notice of compliance setting forth the names of her treating physicians. She also submitted a letter from a doctor who explained the nature of Allendorfer’s treatment and advised that it would be six months before her participation in the suit could be anticipated. A few days later, Allendorfer moved for a corrective order contending that the discovery order varied from the court’s ruling at the hearing. No ruling on this motion appears in the record. On April 19, 1983, the defendants moved for involuntary dismissal. The court granted dismissal. It is from this order Allendorfer appeals.

If a party fails to properly serve answers or objections to interrogatories, the trial court may enter an order to compel discovery. Fla.R.Civ.P. 1.380; Johnson v. Allstate Ins. Co., 410 So.2d 978 (Fla. 5th DCA 1982). If the party does not comply with the order, the court may then impose sanctions, one of which is dismissal of the action. Fla.R.Civ.P. 1.380(b)(2)(C); Johnson; Ramos v. Sanchez, 375 So.2d 51 (Fla.2d DCA 1979). However, it is a general principle that the punishment for disregard of a court order should fit the crime. Smalley v. Layne, 428 So.2d 298 (Fla.3d DCA 1983); Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla.3d DCA 1980). The dismissal of a cause of action is a drastic remedy which should be used only in extreme situations. Lifeguard Corp. v. U.S. Home Corp., 429 So.2d 94 (Fla.2d DCA 1983); Johnson v. Landmark First Nat. Bank, 415 So.2d 161 (Fla. 4th DCA 1982); Ramos v. Sanchez. Courts have reversed orders of dismissal or the entry of default judgments where the disregard of the court’s order was not wilful or flagrant, Santuoso v. McGrath & Associates, Inc.; Ramos v. Sanchez, or did not result in prejudice to the opposing side, Travelers Ins. Co. v. Rodriguez, 357 So.2d 464 (Fla.2d DCA 1978), or both, Lifeguard Corp. v. U.S. Home Corp.; Beaver Crane Service, Inc., v. National Surety Corp., 373 So.2d 88 (Fla.3d DCA 1979).

Unlike the situation in Johnson v. Allstate Ins. Co., Allendorfer was not given several opportunities to comply with the court’s order. In addition, the record shows that counsel was not sure that the order (apparently prepared by opposing counsel) comported with the court’s ruling at the hearing as evidenced by a letter to opposing counsel and the motion for corrective order. The defendants are correct that the letter is not an affidavit and that the letter and authorization form are not in total compliance with the order. However, in light of the confusion regarding the court’s actual requests and the fact that the response was, at most, incomplete, rather than a total disregard of the order, the dismissal of the action was too severe a sanction.

Since there was no evidence of bad faith or wilful disregard or gross indifference to the court’s order, we reverse the dismissal and remand the cause for further proceedings, including any other sanctions deemed appropriate.

REVERSED and REMANDED.

ORFINGER, C.J., and COBB, J., concur.

      . In that case, the defendant propounded written interrogatories to the plaintiff. Dissatisfied with the response which it considered incomplete and evasive, defendant moved for an order to require a better answer, which motion was granted. Plaintiff then responded in a manner which defendant deemed to be not in compliance with the original order and filed a second motion to compel a better answer. After a hearing, a second order was entered requiring an additional answer to the interrogatory. When no response was forthcoming, defendant again moved for sanctions, and after a hearing, the court denied the motion for sanctions, but again ordered a response to the interrogatory within thirty days, this time stating that the action would be dismissed upon failure to respond. When there was no response to the third order within the time specified, the order of dismissal was entered.


author: DAUKSCH, Judge.

text:
    Phyllis M. HUNTER, Appellant, v. CAL-MAINE FOODS, INC., a foreign corporation, Appellee.
    No. 83-1344.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Phillip J. Chanfrau, Jr., of Chanfrau, Chanfrau & Whitson, Daytona Beach, for appellant.
    Walter Butcka, P.A., Ormond Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an “Order Denying Plaintiff’s Motion to Vacate Order of Dismissal”. Because the original Order of Dismissal was specifically without prejudice to Appellant’s filing another complaint, and it was a non-final order, there should have been a final order or final judgment obtained in order to vest this court with jurisdiction. The order which was appealed is merely a request for review of the original order and as such does not toll the time for taking appeal. Therefore not only is the appeal untimely it is from a non-appeal-able order.

This appeal is dismissed.

COWART, J., and COLEMAN, T.P., Associate Judge, concur.


author: CAMPBELL, Judge.

text:
    Richard P. HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2491.
    Court of Appeal of Florida, Second District.
    April 11, 1984.
    Rehearing Denied May 15, 1984.
    See also, Fla.App., 449 So.2d 1319.

      Joel Hirschhom of Joel Hirschhorn, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Richard P. Hope, appeals his conviction and sentence for indirect criminal contempt under Florida Rule of Criminal Procedure 3.840. We affirm.

Appellant raises two points for our consideration:

I. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR RECUSAL OF TRIAL JUDGE.

II. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE TRIAL COURT’S FINDING THAT APPELLANT POSSESSED THE CRIMINAL INTENT NECESSARY TO SUPPORT A FINDING OF GUILT AS TO THE OFFENSE OF INDIRECT CRIMINAL CONTEMPT.

The proceedings below began as a result of instanter subpoena served on appellant in Tampa early in the afternoon of September 7,1983. That subpoena required appellant to appear forthwith before the Hills-borough County Grand Jury that was then in session. Appellant was taken to the grand jury by the law enforcement officers who served the subpoena. Appellant’s request to contact his previously retained attorney in Miami was refused prior to his appearance before the grand jury. On being questioned before the grand jury, appellant asserted his Fifth Amendment privilege against self-incrimination. Appellant then was specifically extended the immunity afforded by section 914.04, Florida Statutes (1983), and was excused from the grand jury room in order to contact his attorney. His attorney was unavailable and appellant talked briefly to another attorney who declined to advise appellant. Appellant was returned to the grand jury room where he continued to assert a Fifth Amendment privilege. Appellant was then excused from the grand jury to await the arrival of the circuit judge from Polk County who had been specially assigned to advise the Hillsborough County Grand Jury in the matters pending before it. During this interval, which by now was late in the afternoon of September 7, 1983, appellant was able to briefly talk by telephone with his attorney in Miami. However, because his attorney was about to leave his office to attend a religious celebration, the attorney informed appellant he was not in a position to render him legal advice. A continuance of the grand jury proceedings was refused. The assigned judge, upon his arrival, was advised of the status of the proceedings. The trial judge spoke by telephone with an attorney associate of appellant’s Miami attorney, who advised the judge that appellant’s attorney was unavailable then and would continue to be unavailable the following day due to religious observances. The trial judge advised appellant that due to his grant of immunity, he had no alternative but to either testify or be held in contempt. Appellant continued to refuse and the matters were recessed and appellant was orally cited for contempt by the trial judge and held in jail pending a hearing on the contempt citation.

Subsequently, a hearing was held on September 9, 1983, at which time appellant was adjudged guilty of civil contempt. Appellant was not represented on September 9, 1983, although his family had been in touch with his attorneys in Miami who informed them that they could not be present at the hearing. Appellant advised the court that he was not indigent, could afford to and had retained his own attorneys, but even though they could not be present, he did not desire to consult anyone else. The trial judge again informed appellant that he had been granted immunity and had no basis for his expressed fears that he might be prosecuted as a result of his testimony.

A further hearing was held on September 13,1983, and appellant was represented by counsel. At that time, the trial judge signed the civil contempt order and an order to show cause why appellant should not be found guilty of indirect criminal contempt. A hearing was held on the order to show cause on October 14, 1983, and appellant was represented by counsel. Appellant was found guilty of indirect criminal contempt. A sentencing hearing was held on December 2, 1983, at which time appellant was sentenced to five months and twenty-nine days. This appeal followed.

Although his motion for recusal does not specify, it appears from the affidavits and argument in support thereof, that it was filed pursuant to Florida Rule of Criminal Procedure 3.230, rather than Florida Rule of Criminal Procedure 3.840(a)(5). In addition, there is nothing in the nature of the alleged contempt that would indicate there was any disrespect to or criticism of the trial judge involved so as to actuate Rule 3.840(a)(5). Pertinent to appellant’s argument on his motion to recuse is the fact that the trial judge had, prior to the hearing on the order to show cause on the indirect criminal contempt, adjudged appellant guilty of civil contempt for the same acts as were the subject of the indirect criminal contempt. Appellant argues that the trial judge was prejudiced against him because he had prejudged the facts constituting both the civil contempt and the indirect criminal contempt. Accepting, as we must, the facts of the motion for recusal and supporting affidavits as true, they are not legally or reasonably sufficient to support a well grounded fear in appellant that he would not receive a fair trial at the hands of the trial judge. State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (1938); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932). In addition to the motion and supporting affidavits, we have examined all of the transcripts of the various proceedings before the trial judge below and find not one scintilla of evidence that would justify a reasonable fear in appellant of not receiving a fair trial before that trial judge. If such were the case, no trial judge could ever adjudicate a contemnor to be guilty of civil contempt and then, after complying with necessary due process procedures, preside over indirect or direct contempt proceedings involving the same conduct. Appellant also argues that the trial judge should have recused himself because he would be a necessary witness inasmuch as appellant’s refusal to testify was repeated and affirmed before the trial judge. That argument must fail for much the same reason as the argument addressing the alleged prejudice of the trial judge. In any ease of direct or indirect criminal contempt where the acts took place before the trial judge, the argument could be made that because the trial judge witnessed the act he should be disqualified. However, that circumstance alone is not sufficient to require disqualification of the judge. Byrant v. State, 363 So.2d 1141 (Fla. 1st DCA 1978). In this case, appellant, by his answer to the order to show cause, has admitted his refusal to testify before the grand jury. Having admitted the act upon which his contempt was based, his defense was premised on his allegations that the act was not intended to be contemptuous as he argues in regard to the second point he raises before us. ⅞

Appellant’s second point is actually based on two arguments. First, he argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt because his refusal to testify was due to his alleged inability to adequately consult with his private counsel. Appellant argues that since that was his constitutional right, his refusal to testify, based upon that right, reflects a lack of intent to be contemptuous. First of all, a witness, as opposed to an accused, in a judicial proceeding has no constitutional right to counsel unless the witness’ Fifth Amendment rights are in jeopardy. Even then, the right to counsel has certain restrictions which we have no need here to examine. In this case, appellant was granted the complete immunity available to a witness under section 914.04, Florida Statutes (1983). That statutory immunity has been construed to be coextensive with the scope of the Fifth Amendment privilege. State v. McSwain, 440 So.2d 502 (Fla. 2d DCA 1983). As the trial judge carefully explained to appellant several times, once that statutory immunity was granted, appellant had only the choice between testifying or being in contempt for failure to so testify. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). Even though, in this case, appellant invoked his Fifth Amendment privilege and was consequently specifically granted immunity, our supreme court has recently held in Jenny v. State, 447 So.2d 1351 (Fla.1984) that section 914.-04 is self-executing, and a witness under subpoena to testify need not invoke Fifth Amendment rights in order to acquire the immunity granted by the statute. While we see some severe potential problems in the implementation of Jenny, there no longer seems to be any question that a witness who testifies as a result of a subpoena to appear before a grand jury is automatically granted statutory immunity and has no need or right to counsel. Even so, after receiving the subpoena and appearing before the grand jury on September 7, 1983, appellant was allowed to exit the grand jury room and call his private counsel in Miami. Though they were able to talk only briefly because his counsel was beginning the celebration of a religious holiday, a brief conversation would have been sufficient to confirm the trial judge's admonition that he had but the choice to testify under statutory immunity or be in contempt. Nevertheless, the proceedings were recessed for two days, until September 9, 1983, during which time appellant had further opportunity to confer with an attorney, albeit his previously retained attorney was still involved in a religious celebration. The matter was then recessed for another four days, until September 13, 1983, when a further hearing was held during which appellant was represented by counsel. At each of those three appearances before the trial judge, appellant refused to answer questions before the grand jury-

As a result of the September 13, 1983 hearing, the order to show cause why appellant should not be held in indirect criminal contempt was issued and the hearing held thereon on October 14, 1983. Appellant was represented by counsel at that hearing and found guilty of indirect criminal contempt. Sentencing was continued until December 2, 1983. At each appearance before the trial judge, the judge continued to offer not to find appellant guilty and not to sentence him for indirect criminal contempt if he would testify, but in each instance appellant continued to refuse.

Appellant’s argument that though he refused to testify he lacked contemptuous intent, is belied by his continuous and repeated refusal to testify after being repeatedly warned of the consequences of his conduct and after being afforded more than ample due process for the protection of his rights. As the court stated in Wilson v. Joughin, 105 Fla. 345, 141 So. 178, 179, 181 (1932):

It may be that even now, if the sole question were the intent of an ambiguous act, the proposition would apply. But in this case it is a question of personal presence and overt acts. If the presence and the acts should be proved there would be little room for the disavowal of intent.

See Croft v. Culbreath, 150 Fla. 60, 6 So.2d 638, 639 (1942).

Appellant also argues, in support of his point II, that he had a good faith belief that the instanter subpoena and the method in which it was served was unlawful. We find no merit in that argument. “The power of the grand jury to summon or bring persons before it for the purpose of hearing testimony on matters under investigation admits of no doubt, although the exercise of this power is discretionary.” 33 Fla.Jur.2d Juries § 141 p. 534, 535.

On oral argument, appellant urged that the evidence did not support his conviction because the assistant state attorney who conducted the grand jury interrogation and the hearing on the order to show cause was not sworn to testify concerning the facts of appellant’s refusal to testify. As we have previously observed, appellant admitted his refusal to testify in his answer. He also, in the presence of the trial judge, repeatedly refused to testify. Thus, while the contemptuous acts were tried as indirect criminal contempt under the theory of Pendley v. State, 392 So.2d 321 (Fla. 1st DCA 1981), the acts were in fact committed in the presence of the trial judge. Baumgartner v. Joughin, 107 Fla. 858, 143 So. 436 (1932); Starchk v. Wittenberg, 411 So.2d 1000 (Fla. 1st DCA 1982); Aiello v. State, 338 So.2d 1101 (Fla. 4th DCA 1976); McDonald at 457. While the assistant state attorney “assured” the trial judge at his specific request that the matters he recited in support of the order to show cause “actually transpired,” such recitation was merely superfluous in light of appellant’s admission of the acts which occurred in the presence of the trial judge.

We therefore affirm appellant’s conviction and sentence.

GRIMES, A.C.J., and LEHAN, J., concur.

      . While this court in State v. Schell, 222 So.2d 757 (Fla. 2d DCA 1969) construed the immunity granted by the predecessor statute to section 914.04 to be limited to state compelled witnesses’ testimony, section 914.04 is not limited to testimony compelled as a result of investigative or grand jury subpoenas. It is therefore possible, under Jenny, for a state subpoenaed trial witness, as well as a witness subpoenaed by a state attorney or a grand jury for investigative purposes, to be inadvertently granted immunity in regard to testimony produced as a result of that subpoena.


text:
    Richard Elliott HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2492.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.
    Rehearing Denied May 16, 1984.

      Bennie Lazzara, Jr., of Bennie Lazzara, Jr., P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Ann Garrison Paschall, Asst. Atty. Gen., for appellee.
   LEHAN, Judge.

Defendant appeals his judgment of conviction and sentence for criminal contempt. We affirm.

In its judgment the trial court found, inter alia, that the defendant refused to testify before a grand jury despite having been granted use immunity, having been ordered by the court to testify, and having been given the opportunity to exit the grand jury room and consult with, and having consulted with, his attorney. Similar conduct has been found to be contemptuous. See In re Before Third Statewide Grand Jury, 360 So.2d 4 (Fla. 2d DCA 1978).

Defendant argues that the trial court erred in denying defendant’s motion for recusal of the trial judge. The record does not support defendant’s contention that the trial judge improperly prejudged the case and was prejudiced against defendant. Defendant did not demonstrate that he had a “well grounded fear that he [would] not receive a fair trial at the hands of the judge.” Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983), quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938). See Hope v. State, 449 So.2d 1315 (Fla. 2d DCA 1984), which involved similar proceedings against the father of the defendant in this case and similar contentions concerning the denial of a motion to recuse the trial judge.

Defendant also argues that his refusal to testify was grounded upon a privilege of a son not to testify against his father. Defendant refused to answer only those questions dealing with the activities of his father. However, defendant conceded that he consulted with his attorney prior to his refusal to testify. Accordingly, defendant should have been, and presumably was, aware that no such son-father privilege has been recognized in Florida. Despite defendant's cogent arguments for such a privilege, we are not persuaded that justice would be best served thereby.

As defendant argues, the great value of a son-father relationship has been recognized through the ages. However, the legislature has not created a son-father privilege. See §§ 90.501-90.506, Fla.Stat. (1983). Also, aside from the pros and cons of an asserted son-father privilege, no justifiable reason to favor the son-father relationship over certain other family relationships has been shown nor has a proper rationale in our view been shown to extend a privilege to those other family relationships. In the final analysis, the benefits of a family relationship has concomitant burdens, one of which the defendant bore in this case. Under the circumstances of this case defendant’s reliance upon a nonexistent privilege is insufficient to support his disclaimer of intent to be contemptuous. See Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978).

AFFIRMED.

GRIMES, A.C.J., and CAMPBELL, J., concur.