author: JOANOS, Judge.

text:
    Jason Edward BRYANT, etc., Appellants, v. DUVAL COUNTY HOSPITAL AUTHORITY, et al., Appellees.
    No. AX-204.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    J. Lawrence Smith of Kopelousos, Head, Townsend & Metcalf, and Smith & Parker, Orange Park, for appellants.
    James R. Barfield of Cowles, Hayden, McMorrow & Barfield, Jacksonville, for ap-pellees.
   JOANOS, Judge.

In this appeal from a summary final judgment in a medical malpractice action appellants contend that Dr. Alfonso Bremer should not be afforded immunity under section 768.28(9)(a), Florida Statutes (1981). We disagree and affirm.

In their complaint, appellants alleged that Dr. Bremer’s negligence in leaving an endotrachael tube inserted for nineteen days caused Jason Bryant’s stenosis of the larynx and vocal cords. It was alleged that the alleged negligence was committed in the course and scope of Dr. Bremer’s employment with the University Hospital Academic Fund (Fund), a tax-exempt, private corporation which supports medical education by providing specialists for Jacksonville area hospitals.

Dr. Bremer, chairman of neurosurgery at University Hospital, was Jason Bryant’s attending physician in 1980. As a full-time staff physician employed by the Duval County Hospital Authority, d/b/a University Hospital, Dr. Bremer’s base salary is paid by University Hospital and supplemented by the Fund. The Fund provides billing services for physicians, collecting upon patients’ bills and using the income for medical education services. The primary source of income is from private and insured patients. Part of the money is used to supplement the base salary paid by the hospital. There is, however, no relationship between the number of patients treated and an individual physician’s supplement from the Fund. Dr. Bremer’s total salary was determined when he was hired by University Hospital. He received no monies from other sources for his professional services.

While undisputed that Dr. Bremer is a staff physician at University Hospital, appellants argue that his relationship with the Fund is in the nature of employee and employer and precludes his asserting the immunity afforded by section 768.28(9)(a), Florida Statutes (1981). Section 768.-28(9)(a) provides that no employee of the state or its subdivisions is personally liable in tort for ordinary negligence in the scope of his employment. A state employee is personally liable for actions outside the scope of his employment or for actions in bad faith, with malice or with willful and wanton disregard of human rights, safety or property. Examining the record, we find nothing which would indicate an employee and employer relationship exists between Dr. Bremer and the Fund. Common law considerations in determining the existence of an employer and employee relationship were the selection and engagement of the servant, the payment of wages, the power of dismissal, and the right of control over the servant’s conduct. The essential element was the right of control; the least determinative was the payment of wages. 2 Fla.Jur.2d 297, Agency and Employment § 121. While Dr. Bremer received supplemental salary and other benefits from the Fund, no allegation or evidence shows that the Fund was involved in selecting and hiring him, that the Fund has the power to dismiss him, or, most importantly, that the Fund has a right of control over Dr. Bremer’s conduct. Under the facts of this case, we can find no genuine issue as to Dr. Bremer’s employee status with University Hospital which would preclude summary judgment. Absent an allegation of bad faith, malice, or willful and wanton actions, Dr. Bremer would be personally immune for ordinary negligence within the scope of his employment with University Hospital. White v. Hillsborough County Hospital Authority, 448 So.2d 2 (Fla. 2nd DCA 1983).

Appellants next argue that section 768.28(9)(a) is unconstitutional as applied in this case. As reflected in the trial court’s order, the constitutionality of section 768.-28(9) has been recognized. State, Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981); White, supra. We concur in the Second District Court of Appeal’s decision in the White case and see nothing in this case to take it out from under that determination of constitutionality.

Accordingly, the summary final judgment is AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ralph E. ROBERSON and Imogene V. Roberson, husband and wife, Appellants, v. NOOTER CORPORATION, et al., Appellees.
    No. AX-255.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    David A. Simpson of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, and Harry M. Philo of Philo, Atkinson, Steinberg, Walker & White, Detroit, Mich., for appellants.
    William H. Clark of Clark, Partington, Hart, Hart & Johnson, Pensacola, for ap-pellee Monsanto Textiles Company.
   JOANOS, Judge.

This appeal is from the trial court’s dismissal of Roberson’s complaint against Monsanto Textiles Company (Monsanto) based upon a finding that Roberson’s exclusive remedy is under Chapter 440, Florida Statutes. We agree and affirm.

In an amended complaint, Roberson alleged injuries and damages suffered as a result of an explosion of a continuous polymerization finisher # 22 (CP22) which he was inspecting in the course of his employment with Monsanto. Monsanto moved to dismiss the complaint, citing its obligation to provide workers’ compensation benefits, its compliance with the obligation and its immunity from suit under Chapter 440.

Roberson argues that Monsanto is liable as a parent company of Chemstrand, a subsidiary or separate entity which installed the CP22 in 1957 and subsequently merged with Monsanto. Roberson cites Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587 (Fla.1982), to show the viability of his theory of parent company liability. We are unable to find any allegation of a parent and subsidiary relationship at the time of Roberson’s injury which would allow recovery as in Wilkerson. Absent such a relationship, Monsanto’s liability as Roberson’s employer at the time of his industrial accident would be limited to that imposed under Chapter 440.

Roberson advances a theory of “dual-capacity” which has been recognized most notably in Douglas v. Gallo Winery, 9 Cal.App.3d 103, 137 Cal.Rptr. 797 (Cal.App.1977). Under this theory an employee who is injured by a product manufactured by the employer primarily for sale to the general public may state a cause of action against the employer. The dual capacity theory is based upon the manufacturer’s assuming a liability toward its employee as it would assume toward the general public who buys the product and for whom the product is primarily manufactured. Even the California courts, however, have upheld the exclusive remedy of workers’ compensation when the employer manufactures a product for its own use. Shook v. Jacuzzi, 59 Cal.App.3d 978, 129 Cal.Rptr. 496 (1st Dist.1976). The Florida courts have yet to express whether the “dual capacity” theory would extend the employer’s liability beyond Chap. 440.

We need not determine the viability of the “dual capacity” theory as we find it would not be applicable where, as here, the employer, Monsanto, did not manufacture the CP22 primarily for sale to the general public and did not only incidentally use it in its other activities. Douglas, 63 Cal.App. at 113, 137 Cal.Rptr. 797.

Accordingly, the trial court’s dismissal of Monsanto from this cause is AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.


author: CAMPBELL, Judge.

text:
    William Junior LIGHTFOOT, Appellant, v. STATE of Florida, Appellee.
    No. 84-792.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, William Junior Lightfoot, appeals his sentences on eight counts of armed robbery, one count of burglary, one count of grand theft, and a misdemeanor count of discharging a firearm in public. We affirm. Appellant’s sole point on this appeal is whether the trial court erred in deviating from the sentencing guidelines.

Appellant was charged in eight separate informations with separate and distinct offenses of armed robbery. Another information charged one count of burglary and one count of grand theft. Another information charged the separate misdemeanor offense of discharging a firearm in public. All of the offenses occurred prior to October 1, 1983, but sentencing took place thereafter. Appellant filed motions to suppress in all of the cases except one armed robbery and the misdemeanor offense. After denial of the motions to suppress, while reserving his right to appeal those denials, appellant entered no contest pleas to all charges. Appellant does not raise in this appeal the issue of the denial of his motions to suppress and we, therefore, do not consider them.

It is not clear from the record whether there was a plea agreement entered into with the state. A different assistant state attorney than the one who had prosecuted the cases and negotiated any plea appeared for the state at the plea hearing. Appellant’s attorney, an assistant public defender, at one point indicates that the pleas are “basically, this is to some extent a straight-up plea....” It is our understanding of current criminal law jargon that a “straight-up plea” means a plea that does not involve previously agreed to conditions by the state. Yet, later in the same plea hearing, appellant’s attorney represents that the minimum mandatory sentences on four of the armed robbery charges would run consecutively, but that the state had “agreed in prior conversations that the minimum mandatories would not exceed the maximum time that would be imposed under the guidelines.” The assistant state attorney present at the plea hearing remained silent as to any plea agreements.

It is clear that appellant affirmatively elected to be sentenced pursuant to sentencing guidelines, and the trial judge acknowledged that he would be sentenced “in accordance with the guidelines.” The court also very clearly informed appellant of the maximum sentences he could receive in each case. Subsequently, at appellant’s sentencing hearing, the trial judge imposed consecutive minimum mandatory sentences of three years each on four of the armed robbery charges, for a total of twelve years. The sentences on the remaining offenses were imposed to run concurrent with the minimum mandatory sentences. At that point in the sentencing hearing, appellant’s attorney objected to the sentences as exceeding “the guideline recommendation, and also object, Your Honor, that upon acceptance of the plea recommendation, the Court indicated it would sentence within the guidelines.” The assistant state attorney present again remained silent.

While the record reflects that a guidelines scoresheet had been prepared, it was not included within the record supplied to us. However, the reconstruction of the scoresheet indicates it would have shown a sentence in the recommended range of seven to nine years. The trial court, after appellant’s objection to the sentences, stated that he did not recall that he said he would sentence by the guidelines, but if he did so indicate, appellant could withdraw his plea and go to trial. It is clear to us from the record that while the trial court acknowledged appellant’s affirmative election to be sentenced pursuant to the guidelines, he at no time stated he would not deviate from any recommended guidelines sentence. Even so, we do not consider that the trial court has deviated from the requirements of sentencing guideline procedures. Florida Rule of Criminal Procedure 3.701(d)(9) provides that where a recommended sentence is less than the mandatory sentence for an offense having a mandatory penalty, the mandatory sentence takes precedence.

Since appellant was sentenced to four separate and distinct armed robberies, each carrying a minimum mandatory sentence of three years, the trial court was acting within the provisions of rule 3.701 when he imposed consecutive sentences of three years for each armed robbery. He was not required to enter a written statement setting forth clear and convincing reasons for his sentence since the sentence was not a departure from that allowed by rule 3.701. We, therefore, affirm the judgments and sentences of the trial court. We note, however, that each sentence reflects that it is “Not a Guideline Sentence.” Since appellant had elected to be sentenced pursuant to the guidelines, ai)d the court had so acknowledged, on remand, the sentences should be corrected to so reflect.

As to whether the sentences imposed violated any plea agreement with the state, for the reasons stated above, we cannot make that determination. The trial court clearly was not bound by such an agreement, if any. However, if the plea agreement was in existence and not followed, appellant should be given an opportunity to withdraw his plea and go to trial on the charges as the trial judge suggested. On remand, a determination should first be made as to whether any plea agreement existed.

Affirmed and remanded for treatment consistent herewith.

RYDER, C.J., and LEHAN, J., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Scott Harlan BROWN and Thomas Gordon Reed, Appellants, v. STATE of Florida, Appellee.
    No. 83-2631.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Rehearing Denied Dec. 28, 1984.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HURLEY and DELL, JJ., concur.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I concur in the majority’s affirmance of the trial court’s actions in denying motions to suppress and for discharge. Because there is evidence to support the trial court’s ruling on the motion to suppress, we are not free to disturb that ruling. I do not feel that the trial court erred in denying the motion for discharge because I do not believe the rule relied on by the appellants, Florida Rule of Criminal Procedure 3.191(g), applies to the facts involved herein. The appellants, pursuant to no contest pleas, were adjudged guilty and sentenced. In a previous appeal this court did not disturb the convictions and sentences but merely directed that an evidentiary hearing be conducted on a motion to suppress. 409 So.2d 255 (1982). For that reason I do not believe that Rule 3.191(g), requiring a new trial to be conducted within 90 days of mandate, applies to this case.


author: DANAHY, Judge.

text:
    Earl ENMUND, Appellant, v. STATE of Florida, Appellee.
    No. 84-897.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant challenges his sentences for two first degree murders committed during the course of a robbery, and his conviction for the robbery.

The defendant was charged with the first degree murders of Thomas Henry Kersey and Eunice May Kersey and the robbery of Thomas Henry Kersey. The state’s evidence at trial showed that the Kerseys were killed by Sampson Armstrong while he and Jeanette Armstrong were robbing Mr. Kersey and that the defendant aided and abetted the robbery by driving the getaway car. The jury found the defendant guilty of the murders and the robbery and recommended the death penalty. The defendant was adjudicated guilty and sentenced to death for the murders and to a concurrent term of life imprisonment for the robbery. After an affirmance by the Supreme Court of Florida, the Supreme Court of the United States reversed the death sentences and remanded. Enmund v. State, 399 So.2d 1362 (Fla.1981); En-mund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). On remand, our supreme court vacated the death sentences and remanded to the trial court with directions to impose, for each of the two first degree murder convictions, a sentence of life imprisonment without eligibility for parole for twenty-five years. The court’s decision gave the trial judge discretion to decide whether the life sentences would be served concurrently or consecutively. Enmund v. State, 439 So.2d 1383 (Fla.1983).

At sentencing following remand, the defendant asked the trial judge to correct an illegal sentence by vacating the sentence for robbery as the underlying felony for the felony murders. The trial judge granted the motion and vacated the defendant’s sentence for robbery. However, he allowed the conviction for robbery to stand. The trial judge then imposed two consecutive life sentences for the murders, with twenty-five years minimum mandatory on each sentence so that the defendant would not be eligible for parole for fifty years. This appeal by the defendant followed.

The defendant argues that the trial judge erred by imposing consecutive minimum mandatory sentences for two offenses committed in a single criminal episode, and that the trial judge also erred by adjudicating the defendant guilty of both felony murder and the underlying felony. We agree on both points.

In Palmer v. State, 438 So.2d 1 (Fla.1983), our supreme court held that Florida law does not authorize a trial court to impose consecutive three-year minimum mandatory sentences under section 775.-087(2), Florida Statutes (1983), for offenses arising from a single criminal transaction or episode. We believe that the court’s reasoning applies as well to consecutive minimum mandatory sentences of twenty-five years for two murders committed in the course of one criminal episode. In fact, in the Palmer case, the court drew a parallel to the statute mandating a minimum sentence of twenty-five years upon conviction of a capital felony. Accordingly, we hold that section 775.082(1), Florida Statutes (1983), authorizing a minimum mandatory sentence of twenty-five years before eligibility for parole on conviction of a capital felony, does not authorize consecutive minimum mandatory terms of twenty-five years each in connection with two consecutive life imprisonments for two murders committed during the same criminal episode.

The defendant’s second point causes us more difficulty. In State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983), petition for review denied, 450 So.2d 486 (Fla.1984), we held that a defendant could be neither convicted nor sentenced for a robbery and also for felony first degree murder for which the robbery is the underlying felony. In reaching that conclusion, we expressly relied on the decision of our supreme court in Bell v. State, 437 So.2d 1057 (Fla.1983), issued on June 9, 1983. Our decision in Harris was issued September 16, 1983 and rehearing denied on October 26, 1983, following denial of rehearing in Bell on October 11, 1983.

On September 9, 1983, the supreme court denied rehearing in Hawkins v. State, 436 So.2d 44 (Fla.1983). In that case, the supreme court said:

We also find, as conceded by the state, that the sentence for robbery was improper because the robbery was the underlying felony specified by the jury as justifying the conviction for the first-degree murder. Appellant cannot be sentenced for both robbery and the first-degree murder under the rule we established in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). See also Faison v. State, 426 So.2d 963 (Fla.1983). The rob bery conviction is proper, but we vacate the separate sentence for robbery. [Emphasis supplied.]

Under the circumstances, we follow our decision in Harris and hold that the conviction as well as the sentence for robbery in this case cannot stand. However, because of the apparent conflict between Bell and Hawkins, we certify the following question to the supreme court as one of great public importance:

WHEN A DEFENDANT IS CONVICTED OF FELONY MURDER, CAN HE BE CONVICTED OF, ALTHOUGH NOT SENTENCED FOR, THE UNDERLYING FELONY?

We reverse the conviction and sentence for robbery. We reverse the sentences for the murders with directions to the trial court to correct the sentences so that the mandatory minimum sentences of twenty-five years will be served concurrently.

REVERSED AND REMANDED.

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


author: RYDER, Chief Judge.

text:
    Hollie J. McCALEB, Appellant, v. I. Lorraine MATHIS, Appellee.
    No. 84-1195.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1984.
    John M. Potter, Clewiston, for appellant.
    James D. Sloan of Luckey, Elver & Sloan, LaBelle, for appellee.
   RYDER, Chief Judge.

In this post-dissolution proceeding, the wife, I. Lorraine Mathis, sought a modification of the final decree. She requested an increase in child support and a specific visitation schedule “at times other than summer and holidays.” The original judgment, incorporating the parties’ agreement, provided that the husband, Hollie J. McCa-leb, would have the right to visit his two minor children during school holidays for Easter and Christmas in even numbered years, for one month during the summer, and at other times as were mutually agreeable to the parties.

At hearing on the wife’s petition, the trial judge increased the amount of child support. Two days later, he entered a written order incorporating the child support increase and a comprehensive detailed two-page visitation schedule. The schedule included provisions for visitation on weekends, holidays, birthdays, and vacations. It also addressed contingencies such as waiting, cancellations and moving. The husband appeals from this order, contending that a wholesale revision of the parties’ agreement as to visitation was unauthorized when it was neither raised in the pleadings nor tried by the consent of the parties. We agree and reverse. The husband does not contest the increase in child support.

The wife’s petition for modification asked the court only to set a specific schedule for visitation at times other than summer and holidays. Although Florida Rule of Civil Procedure 1.190(b) allows issues not raised by the pleadings to be treated as such when tried by the express or implied consent of the parties, that did not happen in this case. Rather, at the beginning of the hearing, the wife’s attorney stated, “I don’t think visitation is a problem. We are requesting an increase in child support.” Thereafter, the only evidence presented about visitation was the wife’s testimony that she did not know whether the children would return from visits with their father at 6:00 p.m., 7:00 p.m. or 8:00 p.m.

The trial court’s order denied the husband fundamental due process as it adjudicated issues not presented by the pleadings nor litigated by the parties. Such an order is at least voidable on appeal. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Gligorijevic v. Gligorijevic, 427 So.2d 1060 (Fla. 2d DCA 1983); Lentz v. Lentz, 414 So.2d 292 (Fla. 2d DCA 1982); Wallace v. Wallace, 413 So.2d 1261 (Fla. 2d DCA 1982); Manning v. Varges, 413 So.2d 116 (Fla. 2d DCA 1982).

Accordingly, we affirm only that portion of the trial court’s order increasing child support payments from $25.00 per week per child to $32.50 per week per child, and reverse and set aside that portion of the order modifying the husband’s visitation with the minor children.

Affirmed in part, reversed in part.

CAMPBELL and LEHAN, JJ., concur.


text:
    ITD INDUSTRIES, INC., Petitioner, v. Vernon MORRELL and Helen Morrell, Respondents.
    No. 84-1805.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1984.
    Gary W. Nicholson of Carson, Guemmer & Nicholson, Tampa, for petitioner.
    John M. Edman, St. Petersburg, for respondents.
   RYDER, Chief Judge.

ITD Industries, Inc., the defendant/petitioner, seeks issuance of a writ of certiorari to review a circuit court order which requires them to provide the plaintiffs/respondents with the name and address of their expert and also allows the respondents to depose this expert.

Helen Morrell fell on a stairway located on ITD’s property. Morrell and her husband filed a complaint against ITD alleging that her fall was caused by ITD’s failure to maintain the stairway, that the stairway did not have a handrail, and that the thread of the stairs protruded from the riser. ITD filed its answer and affirmative defenses.

On March 28, 1984, the Morrells served notice of service of interrogatories on ITD. Interrogatory # 2 asked ITD to “list the name and address of any technician or expert known or believed by you, your attorney, or other representative, to have performed or who will perform any test, investigation, analysis or examination relevant to any issue involved in this cause.”

On May 11, 1984, the Morrells filed a motion to compel answers to the interrogatories and to a previously filed motion to produce photographs and diagrams. By order dated June 5, 1984, the trial court granted the Morrells’ motion to compel and ordered that ITD fully answer the interrogatories and the notice to produce. In the meantime, however, ITD answered the interrogatories, but responded to interrogatory # 2 as follows:

Objected to as the defendants have had the premises examined by an expert, but do not intend to use that expert at the trial of the case, and at this present time have not engaged the services of any other expert who will be used at the trial of the case.

The Morrells then filed a motion to strike ITD’s pleadings. The grounds for this motion were that: petitioner failed to timely object to the interrogatories and motions to compel; that after the time for filing any objections, the petitioner submitted answers but failed to completely answer the interrogatories and notice to produce and filed objections to some of the items sought; and that because the time for objection had passed, the answers provided by the petitioner were improper.

After a hearing, the court entered its order denying the respondents’ motion to strike on July 12, 1984. However, the order required that the petitioner immediately provide the respondents’ attorney with the name and address of the expert referred to in the answer to interrogatory # 2, and that the respondents be allowed to take the deposition of this expert.

Petitioner ITD argues that the trial court’s order violates Florida Rule of Civil Procedure 1.280(b)(3)(B), which provides that a party may discover facts known or opinions held by an expert retained in anticipation of litigation only as provided in rule 1.360(b) or upon a showing of exceptional circumstances. They further argue that because the respondents have not shown any exceptional circumstances, the trial court’s order departs from the essential requirements of the law. We agree.

The respondents argue that the trial court has the authority to order discovery when a party fails to comply with the Florida Rules of Civil Procedure discovery provisions. They further argue that the petitioner’s alleged failure to serve a timely objection waived the objection.

While it is true that a court may impose sanctions to comply with court-ordered discovery, the respondents failed to cite any rule or case which allows the court under these circumstances to order discovery from an expert who will not be used at trial.

In our recent decision in The Wackenhut Corporation v. Crant-Heisz Enterprises, Inc., 451 So.2d 900 (Fla. 2d DCA 1984), we held that an expert retained in anticipation of litigation who will not be used at trial cannot be required to reveal the findings relevant to his investigation in the absence of proof that the adverse party cannot obtain the information without undue hardship.

The rule clearly requires that an adverse party make a showing of exceptional circumstances to have access to this information. The respondents have failed to make such a showing.

The petition for certiorari is granted, the writ is issued, and that portion of the trial court’s order which authorizes the taking of the expert’s deposition is set aside.

GRIMES and LEHAN, JJ., concur.


author: SHARP, Judge.

text:
    Wayne PHILPOT, Appellant, v. STATE of Florida, Appellee.
    No. 84-1654.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 1984.
    Kenneth J. Cotter, of Cotter & Small, P.A., and Richard L. Wilson, Orlando, for appellant.
    No appearance for appellee.
   ON MOTION FOR REVIEW OF ORDER DENYING POST-TRIAL RELIEF

SHARP, Judge.

We deny the motion for review of order denying post-trial relief for the reason that although the order was misnomered by the judge as criminal contempt, in essence it is a civil contempt order for which bail does not lie. However, this order is without prejudice to the movant to seek a superse-deas of the judgment upon which the civil contempt order was based.

DENIED.

COBB, C.J., and COWART, J., concur.


author: PER CURIAM.

text:
    Willie L. LITTLE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-554.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Bennett H. Brummer, Loren H. Cohen and Julian S. Mack, Sp. Appointed Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant Willie L. Little appeals a judgment of conviction and sentence for the offense of escape [§ 944.40, Fla. Stat.(1983)] entered against him after a jury trial below. He raises four points on appeal, one of which is dispositive of the case. He contends, and we agree, that the trial court erred in denying his motion to discharge for failure to bring him to trial within 180 days of his arrest, in violation of Fla.R.Crim.P. 3.191(a)(1). We accordingly reverse.

On August 21,1981, the defendant Little, pursuant to a daytime work release program, was permitted to leave Beckham Hall Community Center in Dade County, Florida, where he was serving a prison sentence for robbery; he failed to return to Beckham Hall that night as required. On August 29, 1981, the defendant was arrested in Dade County for this escape, as well as for a petit theft allegedly committed after he escaped from Beckham Hall. Under Fla.R.Crim.P. 3.191(a)(1), he was required to be tried on the escape charge within 180 days of his arrest. Without dispute, the defendant was not tried within 180 days of August 29, 1981, due to no fault on his part as he was available for trial during this entire time. He should have been discharged by the trial court under Fla.R.Crim.P. 3.191(a)(1) upon proper motion filed below by the defendant. Strickland v. State, 435 So.2d 934 (Fla. 1st DCA), pet. for review denied, 441 So.2d 633 (Fla.1983); State v. McKenzie, 375 So.2d 610 (Fla. 2d DCA 1979); Travis v. State, 364 So.2d 870 (Fla. 1st DCA 1978).

The state argues that the defendant was not taken into custody for purposes of the speedy trial rule until April 27, 1982, when the defendant was formally served with a fugitive warrant on the escape charge while in custody serving his prison sentence for robbery. We disagree. Fla.R. Crim.P. 3.191(a)(4) provides as follows:

“For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.”

Plainly, the defendant was arrested as a result of his escape from Beckham Hall when he was apprehended in Dade County on August 29, 1981. There is no requirement under the above rule that an arrest is not effective until a formal warrant, as here, is subsequently served upon the defendant.

The judgment of conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause.


text:
    Edward M. HANRAHAN, Appellant, v. William HILLARD, Appellee.
    No. 83-1768.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Steel, Hector & Davis and Vance E. Salter, Miami, for appellant.
    Alan J. Kluger and Mark Gold, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

In light of the unrebutted sworn showing of the defendant’s actions in attempted defense of the complaint, which we hold established that his failure to answer and defend formally and timely was the result of “excusable neglect,” see B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972), and the parties’ stipulation that meritorious defenses and due diligence had also been demonstrated, the order denying the motion to vacate the default and default judgment entered below was a gross abuse of discretion, see Anish v. Topiwala, 430 So.2d 990 (Fla. 3d DCA 1983); B.C. Builders Supply Co. v. Maldonado, supra, and is consequently reversed.


text:
    C.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-744.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. P.L.R. v. State, 455 So.2d 363 (Fla.1984).


text:
    Nathaniel MORELAND, Petitioner, v. The Honorable Arthur I. SNYDER, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, In and For Dade County, Respondent.
    No. 84-2096.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., and Henry R. Barksdale, Asst. Public Defender, for respondent.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon the conclusion that there was plainly no “manifest necessity” to justify the trial court’s sua sponte declaration of a mistrial after the jury had been sworn below, see Corneiro v. Solomon, 450 So.2d 599 (Fla. 3d DCA 1984); State v. McNeil, 362 So.2d 93 (Fla. 1st DCA 1978), we grant the defendant’s petition for prohibition to preclude his retrial in violation of his rights against double jeopardy.

      . The state relies on Edwards v. State, 336 So.2d 447 (Fla. 3d DCA 1976). We distinguish the case on its facts without endorsing or repudiating its holding.

      . We are sure that the issuance of the formal writ will not be required.


text:
    Anthony MASCIARELLI and Cathy Lee Masciarelli, Appellants, v. Honorable George BRESCHER, Sheriff, In and For BROWARD COUNTY, Florida, Appellee.
    No. 83-2673.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    J. David Bogenschutz of Varón, Bogen-schutz, Williams & Gulkin, P.A., Hollywood, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court order which denied appellants’ petition for writ of habe-as corpus without a hearing, which petition challenged the sufficiency of certain extradition proceedings. We do so upon the authority of Section 941.10, Florida Statutes (1983); Fauls v. Sheriff of Leon County, 384 So.2d 238 (Fla. 1st DCA 1980), approved 394, So.2d 117 (Fla.1981); and Payne v. Askew, 350 So.2d 831 (Fla. 1st DCA 1977).

Reversed and remanded with instructions to conduct a hearing upon appellants’ petition.

Reversed and remanded.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    Roger WOMACK, Appellant, v. STATE of Florida, Appellee.
    No. 84-610.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm on the authority of Harris v. State, 450 So.2d 512 (Fla. 4th DCA 1984).

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


text:
    June D. SQUIER, Appellant, v. Welling M. SQUIER, Appellee.
    No. 84-704.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    William H. Kilby, Fort Lauderdale, for appellant.
    J. David Lynch of Andrews, Lubbers & Lynch, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The trial court modified a final judgment which adopted an agreement of the parties providing for, among other things, periodic alimony. The court found the wife was not in need of alimony at the time of the modification and, thus, terminated all alimony payments. We find that decision supported in the record. Should the circumstances of the parties change again so that she is in need of further assistance, she can apply once again to the court for relief.

Accordingly, the order appealed from is affirmed.

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


text:
    In re ONE (1) 1982 FORD EXP VIN #2F-ABP0120CX128979 and Two Thousand Nine Hundred Dollars ($2,900.00) U.S. Currency.
    No. 84-1161.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    James I. Cohn, Fort Lauderdale, for appellant.
    Donald J. Doody and Les Stracher of Josias & Goren, Fort Lauderdale,'for appel-lee.
   PER CURIAM.

Affirmed. See In re Forfeiture of 1979 Toyota Corolla Automobile VIN # KE30619534, 424 So.2d 922 (Fla. 4th DCA 1982).

LETTS, DELL and WALDEN, JJ., concur.


text:
    HERBERT HARRIS, INC., a Florida corporation, and Herbert Harris, individually, Appellants, v. TRANSFLORIDA BANK, a Florida banking corporation, Appellee.
    No. 84-1222.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Gary M. Farmer, P.A., Fort Lauderdale, for appellants.
    Adam Kurlander of Law Offices of Ze-deck & Kurlander, North Miami Beach, for appellee.
   PER CURIAM.

The trial court erred by entering a default against the appellants after they had filed their answer and affirmative defenses. Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982); Meyerson v. Block, 404 So.2d 807 (Fla. 3d DCA 1981); and Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981). Fla.R.Civ.P. 1.500(b) and (c).

Reversed.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    John M. POTTER, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. 84-629.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.
    Harry A. Blair, Fort Myers, and John M. Potter, Clewiston, for appellant.
    Augustus D. Aikens, Jr., Division Atty., and William A. Frider, Asst. Div. Atty., State Dept, of Admin., Div. of Retirement, Tallahassee, for appellee.
   DANAHY, Judge.

A school board attorney challenges a final order of the Division of Retirement (the Division) which terminated the attorney’s membership in the Florida Retirement System (FRS) retroactive to July 1, 1979.

The appellant was hired as school board attorney for the Glades County School District effective September 1, 1970. As of January 31, 1971, the appellant was enrolled in FRS, which had been created as of December 1, 1970. The final order under review says this respecting the appellant’s enrollment:

Since January 31, 1971, [the appellant] has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described [the appellant’s] work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division through its auditor questioned [the appellant’s] employment status in 1981.

We note, in connection with the “prescribed form” which the school board filed with the Division, that section 121.051(4) provides that the employer shall furnish the administrator with such information as he may request for the proper enrollment of officers and employees in the system. We can only conclude that the “prescribed form” which the school board filed with the Division was not designed to furnish the Division with sufficient information to determine whether the appellant was qualified for enrollment in FRS.

As far as qualification for enrollment is concerned, section 121.021, Florida Statutes (1983), provides that “member” means “any officer or employee who is covered or who becomes covered under this system in accordance with this chapter.” In an effort to describe persons who are not employees, and thus not eligible for membership, the Division adopted administrative rule 22B-6.01(12), Florida Administrative Code (the Rule), effective July 1, 1979. The Rule provides:

CONSULTANT OR OTHER PROFESSIONAL PERSON — Means an individual who: agrees to provide certain services; works according to his own methods; is not subject to control of his employer, except as to the results of his work; and does not enjoy the fringe benefits offered by the employer. A consultant or other professional person usually: is compensated from another salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer’s premises.

In 1983 the Division sent the Glades County School Board a questionnaire regarding the appellant, which the Board duly answered. On May 2, 1983, the Division sent the appellant a letter announcing its decision to terminate the appellant’s continued membership in FRS and to make the termination retroactive to July 1, 1979. The appellant challenged that action by a petition for formal hearing pursuant to the provisions of chapter 120. An evidentiary hearing was then conducted by a hearing officer from the Department of Administrative Hearings. The hearing officer entered a recommended order determining that the Division’s action in removing the appellant from FRS membership retroactive to July 1, 1979, was appropriate under the subject administrative rules, statutory law, case law and facts adduced at the hearing. The Division adopted the recommended order of the hearing officer with the exception of an amendment to a finding of fact and another as to a conclusion of law. The appellant has brought that order to us for review.

The appellant vigorously argues that he is not a consultant or professional person within the meaning of the Rule. On that issue, we find no basis for overturning the Division’s decision. Nor do we agree with the appellant that the Rule is an invalid exercise of the Division’s rulemaking authority under section 121.031, Florida Statutes (1983). We do agree with the appellant that the Division improperly terminated the appellant’s FRS membership retroactive to July 1, 1979. Thus, although we uphold the Division’s determination that the appellant is not eligible for FRS membership and was properly removed from the system, we reverse the Division’s decision to terminate that enrollment retroactive to July 1, 1979. The Division chose that date because it felt that the Rule effective that date put the appellant on actual or constructive notice that he was not qualified for enrollment in FRS. The Division apparently felt that fairness dictated that its decision should not apply retroactively beyond July 1, 1979. We agree with the Division that fairness should apply here; but we take the Division’s notion of fairness one step further and find that disenrollment retroactive to any date before May 2, 1983, would be inequitable under the facts and circumstances of this case.

During the twelve years and four months before the Division’s letter of May 2, 1983, the Division failed to investigate the appellant’s eligibility and treated him in all respects as if he were a properly participating member of FRS. Relying on the recognition of his continued membership, the appellant was forced to forego other retirement alternatives during the period in question. He cannot now go back and restore those alternatives. The result we reach here is in accord with the result reached in Henry v. State Dept. of Administration, 431 So.2d 677 (Fla. 1st DCA 1983). We reject the Division’s argument that the Henry case is distinguishable. It is true that the state auditor questioned the appellant’s employment status in 1981. However, two years passed without any word to the appellant from the Division. The Division’s continued inaction was, at the least, unfair to the appellant.

Accordingly, we modify the order under review to provide that the appellant’s disen-rollment shall be effective May 2, 1983. In all other respects, the order is affirmed.

AFFIRMED AS MODIFIED.

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


author: COBB, Chief Judge.

text:
    Shirley I. McHAN and Burnice McHan, her husband, Appellants, v. Teresa Lynn HUGGINS, Appellee.
    No. 83-1789.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.

      Deborah C. Edens of Maher, Overehuck, Langa & Lobb, Orlando, for appellants.
    William A. Greenburg of Greenburg & Lester, and Robert Rodriguez, Pern Park, for appellee.
   COBB, Chief Judge.

This is an appeal from an award of attorney fees pursuant to section 57.105, Florida Statutes (1983), to appellee Teresa Lynn Huggins. The action commenced with a complaint filed below by the plaintiffs, Shirley and Burnice McHan, alleging that Huggins was the owner of a vehicle loaned to Susan W. Mulleady. Mulleady allegedly negligently operated the vehicle, resulting in a collision with the McHans.

The appellants determined that Huggins had an interest in the automobile based upon the police accident report taken at the time of the collision. The report listed Huggins as the owner of the vehicle, which was identified in the report as a 1976 Chevrolet, Florida tag number WSW-134, with vehicle identification number 1H57H4D438146. On April 8, 1983, McHan’s attorney, John Overchuck, wrote a letter to the Department of Highway Safety and Motor Vehicles, and in response received a letter stating that vehicle number 1H57H4D438146 was not titled in the State of Florida; the Department did indicate, however, that vehicle number 1H57H4D438140 covered a 1974 Chevrolet with the same license plate number as the automobile in the accident. This letter did not identify the owner of the titled 1974 Chevrolet. The McHans then filed suit against Huggins without a follow-up inquiry to the Department.

On September 12, 1983, Huggins’ attorney telephoned the McHans’ counsel and informed him that Huggins did not have any interest in the automobile. Huggins filed an answer on September 16, 1983, in which she denied any legal or equitable interest in the automobile, and also moved for summary judgment with a supporting affidavit of that denial.

Because of the confusion in regard to the issue of ownership, the plaintiffs took the deposition of Huggins on October 6, 1983. She testified that a relative of hers owned the vehicle and that she had been using the car for an extended period of time. On October 13, 1983, the appellants filed a motion to drop Huggins as a party to the suit. On October 17, 1983, Huggins filed a motion for attorney fees, alleging that the suit brought against her was frivolous and failed to raise justiciable issues of either law or fact. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 394 So.2d 132 (Fla. 5th DCA 1980), review denied, 402 So.2d 609 (Fla.1981).

The trial court granted the motion for attorney fees at a subsequent hearing, and entered an order with the following findings:

1. The letter of the Department of Highway Safety and Motor Vehicles dated April 15, 1983 to Plaintiffs’ counsel, John Overchuck, in response to the latter’s letter of April 8, 1983, contained therein matters which served to negate Plaintiffs’ reliance upon the information contained in the accident report regarding ownership of the vehicle, though the Court makes no specific finding as to the propriety of such reliance in the absence of the letter of the Department of Highway Safety and Motor Vehicles.
2. The response of the Department of Highway Safety and Motor Vehicles was such as to require Plaintiff or Plaintiffs’ counsel to make further inquiry as to the ownership of the vehicle involved in the accident that is the subject matter of this action.
3. The Court specifically finds that such further inquiry is necessary before an owner of a vehicle ought to be subjected to vicarious liability for the negligence of one operating the vehicle with his consent and permission.

The parties stipulated that a reasonable fee for the services of Huggins’ counsel would be $300.00 and the court entered ah award in this amount. This appeal followed.

We reverse. Contrary to the trial court’s first finding above, there was nothing in the letter from the Department of Highway Safety and Motor Vehicles that negated the accident report’s identification of Teresa Lynn Huggins as the owner of the vehicle driven by Susan Mulleady. The letter was inconclusive and named no owner of the automobile involved.

The trial court apparently felt that the response from the Department should have prompted Attorney Overchuck to make further inquiry to them about the ownership of the 1974 Chevrolet with I.D. Number 1H57H4D38140 prior to filing suit against Huggins. The fallacy in this reasoning is that Huggins’ own deposition establishes her as the bailee who would be liable for the negligent operation of the automobile by her permittee, Mulleady, to whom she entrusted its operation. Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959); Martin v. Lloyd Motor Co., 119 So.2d 413 (Fla. 1st DCA 1960). The fact that Huggins was voluntarily dismissed from the suit by the appellants does not mean that it was frivolous to join her in the first place. Nor does her designation as an owner rather than a bailee make her joinder as a defendant frivolous.

Even if Huggins were not liable as a bailee who entrusted the car to the driver, we would not impose a punitive attorney fee award against the plaintiffs under the facts of this case. Huggins was present as a passenger in the car at the time of the accident, she was apparently identified by someone at the scene to the investigating officer as the owner of the Chevrolet, and there was no contrary information in possession of counsel for the McHans at the time suit was filed. Reasonable efforts to ascertain parties and issues prior to trial are required, but absolute verification often is impractical or impossible. See Stevenson v. Rutherford, 440 So.2d 28 (Fla. 4th DCA 1983).

REVERSED.

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

      . Section 57.105, Florida Statutes (1983), provides:
      Attorney's Fee. — The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.


text:
    Mark Allen SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 84-125.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Horace Smith, Jr., P.A., Dunn, Smith, Withers & Hart, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Segura v. United States, — U.S. —, 104 S.Ct. 3380, 82 L.Ed.2d 579 (1984).

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


author: DAUKSCH, Judge.

text:
    William Louis GANN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-662.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a sentence. Appellant asserts the judge did not follow the sentencing guidelines as he should have. It is apparent to us that the judge, while a bit hesitant and unsure about it, actually sentenced appellant as an habitual offender under section 775.084, Florida Statutes (1983). The hesitation is quite understandable because even the Sentencing Guidelines Commission is having difficulty getting a hard and fast set of rules and comments to the rules. In October of 1983 the Commission printed in its Guidelines Manual as a comment to Florida Rule of Criminal Procedure 3.701(d)(10) that an enhanced penalty under the habitual offender statute may result in a reclassification of the degree of the crime. Sentencing Guidelines Commission, Guidelines Manual, at 4 (Oct. 1983). This comment was never adopted by the supreme court and was the cause of the trial court’s confusion below. In March of 1984 the Commission voted to strike this comment to make clear that the extended term provision of the habitual offender statute does not allow for reclassification of the felony degree. Minutes of Sentencing Guidelines Commission Meeting held March 16, 1984.

Section 775.084 is a statute regarding habitual offenders. It was correctly applied in this case. We agree with the Second District Court of Appeal that a finding in accordance with the habitual offender statute is sufficient to take the sentence out of the guidelines. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984). We hold that once the offender is not to be entitled to be sentenced under the guidelines then the only limit to the sentence is the statutorily provided maximum as found in section 775.082 and section 775.083, Florida Statutes.

AFFIRMED.

COBB, C.J., concurs.

SHARP, J., concurs in result only.


text:
    Clyde SHIPMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-1039.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Fla.R.App.P. 9.140(b)(1); Fla.R.Crim.P. 3.172(c)(vi), § 924.06(3), Fla.Stat.; Robinson v. State, 373 So.2d 898 (Fla.1979).

COBB, C.J., and ORFINGER and CO-WART, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Clarence SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 83-2458.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The defendant appeals from his conviction of possession of heroin. We hold that the court properly denied his motion to suppress and his motion for discharge under the speedy trial rule. However, there are two points concerning costs which must be addressed.

The court placed the defendant on probation but over objection imposed as a special condition the requirement that he pay $5,000 court costs on a reasonable monthly basis within the term of the probation. The supreme court has held that even a presently indigent defendant can be required to repay court costs as a condition of probation. State v. Byrd, 378 So.2d 1231 (Fla.1979). The problem here is that the $5,000 figure appears to have been determined without regard to actual costs or any estimate thereof. In Smith v. State, 401 So.2d 1176 (Fla. 1st DCA 1981), our sister court reversed a cost judgment which was set as an arbitrary figure. Although the condition to pay costs in this case does not appear to have been imposed under the same statute, we believe that the' figure of $5,000 suffers from the same deficiency.

We also find that the final judgment assessing the defendant $300 in attorney’s fees and costs for representation by the public defender was entered in violation of the notice and hearing requirements of section 27.56(7), Florida Statutes (1983). Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983).

The defendant’s convictions are affirmed. We strike the condition requiring the payment of $5,000 costs and remand for a determination of actual costs. We also strike the $300 judgment for attorney’s fees and costs without prejudice to reassess these costs upon proper notice and hearing.

OTT and LEHAN, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    MADEIRA MANAGEMENT, INC., a Florida corporation, Appellant, v. CHAPMAN REALTY CORPORATION, a Florida corporation, Appellee.
    No. 84-820.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.

      John T. Allen, Jr., of John T. Allen, Jr., P.A., St. Petersburg, for appellant.
    Thomas A. Smith, Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Madeira Management, Inc., plaintiff below, seeks reversal of the trial court’s dismissal of its case for lack of prosecution. We reverse.

A visiting circuit judge, the Honorable John A.H. Murphree, originally heard this case on August 6, 1979. After trial the judge took the case under advisement. On September 15, 1981, Madeira filed a motion for retrial, alleging that the trial judge had not only failed to enter final judgment but was not prepared to make a ruling. Judge Allen C. Anderson heard Madeira’s motion and treated it as a motion for a new trial. On January 4, 1982, he granted a new trial provided Judge Murphree did not render a final judgment within twenty days of Judge Anderson’s order. A copy of this order was sent to Judge Murphree.

Chapman Realty Corporation filed a petition in this court seeking a writ of common law certiorari to quash Judge Anderson’s January 4 order. We granted the petition and quashed the order. See Chapman Realty Corp. v. Madeira Management, Inc., 414 So.2d 1180 (Fla. 2d DCA 1982). We found that Judge Anderson was not presented with any evidence that Judge Murphree’s authority to rule on the case had terminated by reason of death, disability, or other equivalent reason for his failure to rule. We noted that the parties’ proper remedy was a mandamus action to compel Judge Murphree to render a decision in the case. Neither party sought a writ of mandamus to require Judge Mur-phree to rule.

On March 23, 1984, Judge Robert F. Michael, on his own motion, dismissed this case under Florida Rule of Civil Procedure 1.420(e) for lack of prosecution. This appeal by Madeira ensued.

Madeira argues that rule 1.420(e) does not apply once a case has been tried and taken under advisement by the trial judge to determine its merits. We agree. See Strader v. Morrill, 360 So.2d 1137 (Fla. 1st DCA 1978). As Judge Booth noted in Strader, the purposes of rule 1.420(e) are: (1) to require prompt and efficient prosecution of cases until submitted for disposition or determination by the judge or jury, and (2) to prevent the clogging of trial court dockets with litigation that has been abandoned for the stated period. Id. at 1138. Where, as here, a judge has taken a case under advisement after trial and has not requested any further action of counsel, the matter is in the hands of the trial judge. Thus, no further prosecution by the parties is required. Cf. Sarasota Cattle Co. v. Mikos, 431 So.2d 260 (Fla. 2d DCA 1983), approved, 453 So.2d 402 (Fla.1984) (failure of the litigants and counsel to pursue further action after a party has filed a notice for trial is not grounds for dismissal for lack of prosecution).

Chapman argues that in Chapman Realty Corporation we admonished Madeira that the proper remedy was to file a petition for writ of mandamus to compel Judge Murphree to render a decision, it is true that we said mandamus, and not certiorari, was the proper remedy; however, neither party was required to pursue this course.

Accordingly, we reverse the trial court’s order dismissing this case for lack of prosecution.

DANAHY and CAMPBELL, JJ., concur.

      . We have a continuing concern that there should be no unnecessary delays in litigation; therefore, at oral argument we discussed the matter candidly with counsel. They agreed to cooperate in a joint request to Judge Murphree to obtain a prompt ruling. We expect that counsel may accomplish this task by working with the Chief Judge of the Sixth Judicial Circuit.


text:
    Randolph G. STOUT, Appellant, v. Edmer TARDIF and Jeanette Tardif, Appellees.
    No. AW-278.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.
    Joseph H. Forbes, Gainesville, for appellant.
    Anderson E. Hatfield, Gainesville, for ap-pellees.
   PER CURIAM.

AFFIRMED. Simpson v. Robinson, 376 So.2d 415 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 641 (Fla.1980).

JOANOS, WIGGINTON and NIMMONS, JJ., concur.


text:
    The STATE of Florida, Petitioner, v. Roberto TOLEDO, Respondent.
    No. 84-2381.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jim Smith, Atty. Gen. and Randi Klay-man Lazarus, Asst. Atty. Gen., for petitioner.
    Kurt Marmar, Miami, for respondent.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The state seeks certiorari review of an order setting a supersedeas bond pending the defendant’s appeal of the denial of his motion for post-conviction relief under Fla. R.Crim.P. 3.850. Since, as we squarely held in State v. Matrascia, 377 So.2d 997 (Fla. 3d DCA 1979), the trial court has no authority to grant such relief, the petition is granted and the order is quashed.

      . No motion for rehearing will be entertained.


author: SHIVERS, Judge.

text:
    Michael James CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. AZ-399.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.

      Michael James Carpenter, pro se, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

Appellant’s untimely appeal of the trial court’s order which summarily denied his RCrP 3.850 motion is dismissed. However, our dismissal is without prejudice to appellant’s right to seek relief by habeas corpus pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

Prior to seeking delayed appellate review, we urge appellant to carefully consider whether the trial court’s order is error. Appellant, of course, has a right to an appeal if he can show that through State action he was deprived of timely appealing the trial court’s order. However, an appeal would be a needless expense to the taxpayers if there was no error in the trial court’s denial of appellant’s RCrP 3.850 motion.

MILLS and WENTWORTH, JJ., concur.


text:
    Rosemary PRICE, James Stubbs and Julius Taylor, Appellants, v. METROPOLITAN TRANSIT AGENCY, Metropolitan Dade County, a political subdivision of the State of Florida; and C.D. Mosley, Appellees.
    Nos. 83-1218, 83-1735.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jeffrey P. Kaiser, Ellis Rubin and Frank Quintero, Jr., Miami, for appellants.
    Addison J. Meyers, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Finding that the trial court abused its discretion in failing to grant a continuance requested by counsel for the purpose of filing appropriate pleadings following the death of one of the plaintiffs, and in dismissing for lack of prosecution pending actions for personal injury and for wrongful death, we reverse and remand. See Rountree v. Rountree, 72 So.2d 794 (Fla.1954); Crown Trading Co. v. Systems for Security, Inc., 400 So.2d 110 (Fla. 3d DCA 1981); §§ 46.021, 734.101, Fla.Stat. (1977); Fla.R.Civ.P. 1.260(a)(1), 1.440.

Reversed and remanded.


text:
    Raphael B. JOHSTONEAUX, Appellant, v. Carmen JOHSTONEAUX, Appellee.
    No. 83-2837.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Pelzner, Schwedock, Finkelstein & Klausner and Peter Schwedock, Miami, for appellant.
    Michael Lechtman, North Miami Beach, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983).


text:
    The STATE of Florida, Appellant, v. Terry Alan DAVISON, Appellee.
    No. 84-225.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., Janet Reno, State Atty., and Richard L. Shiffrin, Asst. State Atty., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Young v. State, 394 So.2d 525 (Fla. 3d DCA 1981).


text:
    The STATE of Florida, Appellant, v. Phillip Bradley MEAD, Appellee.
    No. 84-313.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellant.
    Arthur E. Huttoe and John H. Lipinski, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Favaloro, 424 So.2d 47, 48 (Fla. 3d DCA 1982); State v. Battleman, 374 So.2d 636, 637 (Fla. 3d DCA 1979).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FIRST NATIONAL BANK OF LAKELAND and Aetna Casualty & Surety Company, Appellee.
    No. 84-446.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Barnett & Clark and James Clark, Coral Gables, for appellant.

      Ress, Gomez, Rosenberg & Howland and Stephen A. Edelstein, North Miami, for ap-pellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Consolidated Government of the City of Jacksonville v. Adams, 213 So.2d 34 (Fla. 1st DCA), cert. dismissed, 218 So.2d 174 (Fla.1968).


text:
    Frank THOMAS a/k/a Francis Thomas Onoprienko, and Robert F. Mulgrew, Appellants, v. Nancy Ann HUEBSCH, f/k/a Nancy Ann Mulgrew, Appellee.
    No. 84-921.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    L.P. Evans, Jr., Miami, for appellants.
    Burton D. Greenfield, Coral Gables, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Finding no merit in the appellants’ position, we affirm the Final Judgment of Re-cission entered by the trial court. With regard to the award of attorney’s fees, however, we reverse. Leitman v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983).

Affirmed in part, reversed in part.


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. METROPOLITAN DADE COUNTY and The Interest of V.G., a child, Appellees.
    No. 84-1364.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Jim Smith, Atty. Gen. and Walter M. Meginniss, Asst. Atty. Gen., for appellant.
    Robert A. Ginsburg, County Atty. and' Eric K. Gressman, Asst. County Atty., John G. Admire, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The main issue presented by this appeal is whether the State of Florida, Department of Health and Rehabilitative Services, or Metropolitan Dade County, if either, is obligated to pay fees assessed pursuant to section 827.07(16) Florida Statutes (1981), to an attorney appointed as guardian ad litem in child abuse and neglect cases instituted under chapter 39, Florida Statutes (1981).

We follow cases from the first district, Department of Health and Rehabilitative Services v. In the Interest of: A.H., A.H. and R.H., Children, 459 So.2d 417 (Fla. 1st DCA 1984); the second district, In the Interest of R.W., a child, State of Florida, Department of Health & Rehabilitative Services v. Lee County, 409 So.2d 1069 (Fla. 2d DCA 1981), rev. denied, 418 So.2d 1279 (Fla.1982); and the fifth district, In re the Interest of M.P., a child, State of Florida, Department of Health & Rehabilitative Services v. Lake County, 453 So.2d 85 (Fla. 5th DCA 1984), which all hold that payment of fees in such cases is the responsibility of the Department. We have held on another occasion that chapter 827, the child abuse law, applies to chapter 39 proceedings relating to juveniles. See In the Interest of E.H., a minor v. State of Florida, Department of Health and Rehabilitative Services, 443 So.2d 1083 (Fla. 3d DCA 1984).

Affirmed.

      . Section 827.07 has been renumbered as sections 415.502-.514, Florida Statutes (1983).


author: PER CURIAM. FERGUSON, Judge

text:
    Barbara QUIRINO, Appellant, v. Frank QUIRINO, Appellee.
    No. 84-1396.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Friedman & Miller and Lawrence Friedman, North Miami Beach, for appellant.
    Martin D. Kahn and Patricia E. Kahn, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Finding no abuse of discretion in the trial court’s award of custody of the oldest child to the father, we affirm. Grant v. Corbitt, 95 So.2d 25 (Fla.1957); § 61.13, Fla.Stat. (1983).

Affirmed.

FERGUSON, Judge

(dissenting).

The only record justification for separating the two minor boys was the older child’s expressed preference, made under compulsion to elect. I would reverse. See Arons v. Arons, 94 So.2d 849 (Fla.1957) (children should not be separated from each other except for the most compelling cause).


text:
    Horace WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1843.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst: Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Russo, 415 So.2d 108 (Fla. 3d DCA 1982).


text:
    Carl David ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-516.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, and Judith Stevenson Maier, Certified Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn Y. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Both parties agree that the record is devoid of evidence that appellant had the financial ability to pay the cost of supervision. Accordingly, we reverse the finding that appellant violated his probation by failing to pay those costs and strike that finding from the order. Stinson v. State, 432 So.2d 738 (Fla. 4th DCA 1983). In all other respects the order of revocation is affirmed.

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


text:
    John Peter HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 84-806.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant below appeals an order revoking his probation. The order was based on the alleged violation of three conditions of probation. Both parties agree that the order of revocation erroneously stated that appellant violated probation conditions (2) and (10). Such a finding is contrary to the oral pronouncement of the trial court. Accordingly, we reverse that portion of the order of revocation declaring a violation of special conditions (2) and (10).

In all other respects the order of revocation is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR CORRECTION OF THE ORDER IN ACCORDANCE HEREWITH.

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


text:
    Charles McCAIN, Appellant, v. STATE of Florida, Appellee.
    No. 84-2284.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Charles McCain, appellant, pro se.
    No appearance required for appellee.
   PER CURIAM.

Charles McCain appeals from the trial court’s order denying him post-judgment relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion failed to comply with the requirements set forth in Rule 3.850 and is therefore legally insufficient. We affirm the trial court’s denial of the motion without prejudice to appellant to file a motion in compliance with Rule 3.850. See Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979); Scott v. State, 364 So.2d 67 (Fla. 4th DCA 1978).

LETTS, HURLEY and DELL, JJ., concur.


text:
    David YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. AX-307.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Michael E. Allen, Public Defender, and Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith> Atty- Gen-> and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Height v. State, 459 So.2d 470 (Fla. 1st DCA 1984); Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982); Lynn v. State, 436 So.2d 416 (Fla. 1st DCA 1983).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    TAUREAN ENTERPRISES, INC., Appellant/Cross-Appellee, v. REAL ESTATE SERVICES UNLIMITED, INC., Appellee/Cross-Appellant.
    No. 84-623.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.
    James E. Aker of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for appellant/ cross-appellee.
    John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appel-lee/ cross-appellant.
   PER CURIAM.

We affirm the trial court’s order granting a new trial on all issues. In so doing, we emphasize that the trial court’s order requires that all issues, including liability and damages, be considered at the new trial.

DANAHY, A.C.J., SCHOONOVER, J., and ROBERTS, SUSAN W., Associate Judge,, concur.


text:
    Mitchell KIRKLAND, III and William Kirkland, Appellants, v. Henry KIRKLAND, Mary Wilson and Margaret Whittaker, Appellees.
    No. 84-1031.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.
    Mark C. Payne, Lawrence & Payne, P.A., Tampa, for appellants.
    Edward F. Koren, Steven L. Brannock, Steven L. Hearn, Holland &• Knight, Karen A. Berkowitz, Newman, Berkowitz & Stein-berg, P.A., Tampa, for appellees.
   PER CURIAM.

The trial court’s denial of appellant’s motion to set aside a default judgment was not an abuse of discretion, much less a gross abuse of discretion. See Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976). Compare Kapetanopoulos v. Herbert, 449 So.2d 947 (Fla. 2d DCA 1984).

AFFIRMED.

SCHOONOVER, A.C.J., and LEHAN, J., and SHAFER, ROBERT T., Associate Judge, concur.


text:
    Steven Francisco ADOPTIE, a minor, By and Through his mother, Marlene ADOPTIE, and Marlene Adoptie, individually, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 84-1073.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Horton, Perse & Ginsberg and Edward Perse; Lawrence Rodgers, Miami, for appellants.
    Robert A. Ginsburg, Dade County Atty., and Ronald J. Bernstein, Asst. County Atty., for appellee Metropolitan Dade County.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Appellee Metropolitan Dade County has confessed error. We accordingly reverse the order dismissing the complaint with prejudice and remand for further proceedings.

Reversed and remanded for further proceedings.


text:
    Richard Brion BROOM, Appellant, v. STATE of Florida, Appellee.
    No. 83-1406.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Rollins v. State, 148 So.2d 274 (Fla.1963); Young v. State, 85 Fla. 348, 96 So. 381 (1923); and Anderson v. State, — So.2d —, 9 F.L.W. 2468 (Fla. 3d DCA November 20, 1984).

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


text:
    John Anthony FROIO, Appellant, v. STATE of Florida, Appellee.
    No. 84-380.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See McKee v. State, 430 So.2d 983 (Fla. 3d DCA 1983).

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


author: WARD, Judge.

text:
    STATE of Louisiana v. Melvin LARD.
    No. KA-1432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    Rehearing Denied Dec. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, State of La.
    Kerry Cuccia, M. Craig Colwart, New Orleans, for defendant-appellant, Melvin Lard.
    Before SCHOTT, WARD and BYRNES, JJ.
   WARD, Judge.

Melvin E. Lard was convicted of possession with intent to distribute heroin, and sentenced to life imprisonment without benefit of probation or suspension of sentence. Lard appeals, arguing assignments of error on seven issues. We do not find merit in any of Lard’s arguments and we affirm.

Lard first contends that he was arrested without probable cause and the evidence seized incidental to that arrest and the statement he made to police after it cannot be used as evidence against him. Consequently, he argues the Trial Judge erred in denying motions to suppress.

As a general proposition, there is probable cause to arrest when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information would justify a man of average caution in believing that the person to be arrested has committed or is committing an offense. State v. Collins, 378 So.2d 928 (La.1979). A confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the totality of the circumstances establish a basis both for the information and the informant’s reliability. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Manso, 449 So.2d 480 (La.1984).

During the hearing on Lard’s motion to suppress, Bruce Adams, the arresting officer, testified that a confidential informant with whom he had worked for years and whose information had led to convictions in the past telephoned him around 6:30 p.m. on October 5, 1982. The informant stated that he had overheard a conversation about a very large heroin transaction that was going to take place between 10:30 and 11:30 that evening in the neighborhood of Clio, Thalia and Baronne Streets in New Orleans and that the person delivering the drugs would be wearing white tennis shoes, red jogging pants, a white tee shirt, and a red and white polka dot welder’s cap, and carrying a purple Crown Royal sack and that he would be driving an old faded blue four-door Chevrolet.

Two plain clothes police officers went to the described location and mingled with the crowd on the streets and sidewalks of the neighborhood. The officers recognized an unusually large number of known drug dealers on the street. Lard soon arrived on the scene, driving an old faded blue Chevrolet and fitting the informant’s description in every detail. At that point, although there may not have been probable cause to arrest Lard, the officers had reasonable suspicion to stop and question him. La.C.Cr.P. art. 215.1(A). As the officers approached Lard and identified themselves, he quickened his pace and tried to toss aside the Crown Royal sack he was carrying. Because of this suspicious behavior, the officers asked Lard what was in the bag. He replied, “Dope ... heroin.” Lard was then arrested.

Lard argues these facts are insufficient to constitute probable cause to arrest and in support his argument he relies on the recent Louisiana Supreme Court opinion in State v. Ruffin, 448 So.2d 1274 (La.1984). In Ruffin, an informant told a police detective that a person was standing on a certain street corner in Baton Rouge, attempting to get someone to help him cash a stolen check. Ruffin was found in the described location and arrested. The sole basis for Ruffin’s arrest was his presence on the corner where the informant said he would be. The Court said, “that fact alone does not indicate that the defendant was engaging in any illegal activity such as would furnish probable cause for an arrest.” 448 So.2d at 1278. Admittedly, there are similar facts in this case: the officers were prompted by a tip from an informant to go to the scene where they observed a suspect fitting the description given by the informant. There are important differences, however. In this case, Lard was not arrested merely because of his presence in a described location. There were several known drug dealers present with Lard at the described location, and he was not arrested until he attempted to evade the police and began to throw down the Crown Royal sack.

La.C.Cr.P. art. 201. Arrest defined

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

Thus, even if the officers intended to arrest Lard from the beginning, and even if “an arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of an accused”, Ruffin, 448 So.2d at 1279, there must be an actual restraint of the person to constitute an arrest. Here, there was no actual restraint of Lard’s person until the police grabbed his arm, preventing him from throwing the Crown Royal bag, and at that point, probable cause had arisen.

Hence, we find there was probable cause for Lard’s arrest and hold that the Trial Judge was correct when he denied the motion to suppress evidence of the cash, the heroin, the Crown Royal sack, and Lard’s statement that the sack contained heroin.

Lard additionally complains that the Trial Judge erred when he denied Lard’s motions for a mistrial which he claims was warranted by references in the presence of the jury to allegedly inadmissible hearsay evidence. During the prosecutor’s opening statement he informed the jury that one of the arresting officers would testify that he received confidential information from an informer, describing the defendant’s clothing, his automobile, and the bag containing narcotics, and that this information led the officers to the scene where the defendant was arrested. During trial, the arresting officer was permitted to testify as to what the confidential informant told him. The content of the informant’s tip in each of these instances was not hearsay, offered as proof of the truth of the matter, that is, that Lard was in fact engaged in drug trafficking. Rather, the information was offered and admitted to show the state of mind of the officers, and more particularly, the reason the officers went to the scene. State v. Calloway, 324 So.2d 801 (La.1975). The information is therefore not hearsay, and reference to it during trial is not grounds for a mistrial.

Lard next argues that the Trial Judge erred when he qualified Officer Rudolph Fazzio of the New Orleans Police Department as an expert witness, and when he permitted him to testify concerning packaging of heroin for sale. Lard contends that Fazzio did not have training or special knowledge of heroin packaging, but only knowledge and experience of drug use generally, therefore he was not qualified to testify as an expert in the use and sale of heroin. .

Before Officer Fazzio was permitted to testify as an expert in the packaging, use and distribution of heroin, the State established that Officer Fazzio had been working for the Narcotics and Drug Abuse Section of the New Orleans Police Department for three years. He had worked under cover for approximately a year, living and associating with heroin users and dealers. During that time, he had observed the use and sale of heroin and had himself purchased heroin. He had received instruction from experienced New Orleans Police narcotics officers and he had taken a United States Drug Enforcement Agency course, as well as attending and giving lectures on the subject.

We do not believe the Trial Judge erred when he permitted Fazzio to testify as an expert. Whether a witness is qualified as an expert is within the sound discretion of the Trial Judge, whose ruling that a witness is qualified as an expert will not be reversed unless it is clearly wrong. In this case, it was not.

Lard next complains that Officer Fazzio, while testifying as an expert about common practices among dealers and users of heroin, gave a brief, but somewhat graphic description of the technique for injecting heroin, which inflammed the jurors. Lard contends that this testimony was irrelevant.

We agree that its relevance is marginal, at best. However, even though expert testimony should be limited to the issues before the jury, it must be excluded only if its prejudicial effect outweighs its probative value. The Trial Judge has great discretion in evaluating the relevance of evidence and its potential effect upon the jury. In determining whether he abused that discretion, an appellate court must look at the allegedly prejudicial evidence as part of the entire record. Reversible error will be found only where, in light of all the evidence, there is substantial prejudice to a defendant. State v. Humphrey, 412 So.2d 507 (La.1982).

In this case, it was not strictly necessary for the state to present evidence concerning the methods of ingesting heroin. However, we find the error harmless as the overwhelming weight of the evidence demonstrated Melvin Lard’s guilt.

Lard’s next assignment of error complains of specific opinion testimony which Officer Fazzio was permitted to give. In order to establish Lard’s possession with intent to distribute heroin, Officer Fazzio testified extensively and in detail concerning the techniques of illegal heroin use and distribution. Near the end of his testimony, the following exchange took place:

EXAMINATION BY MR. WHITTAKER
[for the State]
Q In your experience are dealers usually users of heroin?
BY MR. CUCCIA:
Your Honor, I’m going to object. That’s irrelevant.
BY MR. WHITTAKER:
I think it’s relevant, Your Honor.
BY THE COURT:
Overruled.
BY MR. CUCCIA:
Note my objection for the record, please.
BY THE COURT:
You can answer that.
A A person that would deal this much heroin or more than that or less than that would not be a user of heroin.
EXAMINATION BY MR. WHITTAKER:
Q He is usually not?
A Usually not a user of heroin.
Q Are junkies usually regular dealers of heroin?
A No sir.
[Tr. at pp. 187-188]

Lard argues that Officer Fazzio’s opinion, coupled with the evidence of 277 packets of heroin found on Melvin Lard, implies that it is the officer’s opinion that Lard is a dealer, not a user of heroin. Intent to distribute is, of course, an ultimate issue in the case, to be decided by the jury. Lard contends that the opinion which Officer Fazzio was permitted to express was a substantial factor in the jury’s decision to convict, thus constituting reversible error.

The resolution of this contention requires an understanding of the proper roles of the expert witness and the jury. The purpose of an expert witness is to provide the jurors with a basis of knowledge, background information on the subject in issue not generally possessed by the public at large — knowledge the expert has gained through his specialized training or experience. The role of the jury is that of ultimate fact finder: the jurors relate the background knowledge imparted by the expert to the facts established by the evidence at trial and make a determination of the defendant’s guilt. The ultimate issue of guilt is to be decided by the jury, not by the expert witness. It is error for an expert witness to be permitted to testify beyond the scope of background knowledge and to express an opinion regarding whether illegal activity took place. An expert’s opinion on an ultimate fact is particularly prejudicial where the expert is one, such as an experienced police officer, in whose opinion the jurors would place great confidence and respect.

Lard relies upon two recent cases in which the Supreme Court found reversible error because narcotics officers, qualified as experts, gave opinions concerning ultimate facts to be decided by the jury. State v. Montana, 421 So.2d 895 (La.1982); State v. Wheeler, 416 So.2d 78 (La.1982). In each of those cases, the expert witness, under examination by the State, was given a detailed fact situation identical to the facts of the case under consideration, and in each case the expert testified that on the “hypothetical” facts, he believed that narcotics were being distributed. The Supreme Court found the officers’ opinions to be improper expert testimony, an impermissible usurpation of the jury’s role, and reversed each conviction.

We distinguish the testimony in Montana and Wheeler from that here. Unlike the expert witnesses in Montana and Wheeler, Officer Fazzio made a common-sense observation, background information properly given by an expert witness. Unlike the testimony in Montana and Wheeler, Officer Fazzio’s testimony was general in nature, not given in response to a “hypothetical” fact situation identical to that of the defendant. Had the prosecutor given Officer Fazzio the facts of Melvin Lard’s case and then asked, “What would be your opinion?”, the rule in Montana and Wheeler would apply. However, we find the rule in those cases inapplicable to the testimony in this case and consequently conclude there is no reversible error. This conclusion is in agreement with our recent opinion in State v. Barber, 445 So.2d 463 (La.App. 4th Cir.); writ denied 446 So.2d 1224 (La.1984).

The next assignment of error alleges that the State did not prove the element of “intent to distribute”, hence the Trial Judge should have granted Lard’s motions for a new trial or a post verdict judgment of acquittal. Lard asserts that proof of mere possession of a large quantity of drugs alone is insufficient to support a conviction for possession with intent to distribute. This is true. However, the proof of Lard’s possession of 277 packets of heroin did not stand alone. The State also presented evidence that the packets were in bundles of about 25 packets each, that Lard was carrying $324.00 in cash along with the heroin, that he was carrying the heroin in a bag on the street and was not in a place where an addict might be expected to use heroin, that he did not have paraphernalia for use of heroin, nor was there any evidence tending to show that Lard intended to use, rather than distribute, the heroin. From this evidence of the circumstances surrounding Lard’s possession, we find a clear and reasonable inference of intent to distribute, proven beyond a reasonable doubt.

Lard’s final contention is that the sentence of mandatory life imprisonment without benefit of probation or suspension of sentence provided by La.R.S. 40:966B(1) constitutes cruel and unusual punishment in violation of his constitutional rights because it is disproportionate to the crime. We note that those convicted and sentenced under this statute are impliedly subject to parole and pardon, and we agree with the Fifth Circuit Court of Appeals which upheld as constitutional an earlier version of the statute. Terrebone v. Blackburn, 646 F.2d 997 (5th Cir.1981).

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.