author: LARRY G. SMITH, Judge.

text:
    Lucy Ann HOLLIMAN and the State of Florida Department of Health and Rehabilitative Services, Appellants, v. Donald Frank GREEN, Jr., Appellee.
    No. AR-184.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.

      Joseph R. Boyd and Michael L. Berry, Boyd & Smith, Tallahassee, and Chriss Walker, Fla. Dept, of Health and Rehabilitative Services, Tallahassee, for appellants.
    Ralph Roberts, Roberts & Roberts, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

We hold that trial court erred in dismissing appellants’ amended complaint, which sought a determination of paternity of appellant Lucy Holliman’s daughter, Amaris Bowen.

Appellants alleged that during the period of conception of Lucy Holliman’s daughter, now seven years old, Lucy had sexual relations with her former husband and appellee, and no other man, and they asked the trial court to determine either the former husband or appellee to be the father of Lucy’s daughter. The trial court dismissed the amended complaint against ap-pellee because appellants were not able to allege facts which, if proven by clear and satisfactory evidence, would overcome the presumption that Amaris, who was born when Lucy was married to her former husband, was legitimate. We find that the trial court gave undue weight to the presumption of legitimacy at the pleading stage of this case, and also required undue specificity in the factual allegations of the complaint, considering the privilege of alternative pleading available under Rule 1.110(b), Florida Rules of Civil Procedure, and the scope of actions for determination of paternity under Section 742, Florida Statutes (1981), as augmented (particularly as to the case of HRS) by Sections 409.-2551-409.2594, Florida Statutes (1981). See, also, Highland Insurance Company v. Walker Memorial Sanitorium and Benevolent Association, 225 So.2d 572, 576 (Fla. 2nd DCA 1969).

It is small wonder that the trial court dismissed the complaint against appellee in this case, given the allegation that Lucy had sexual relations with her husband (as well as appellee) at a time when the child could have been conceived. If the determination of paternity of a child conceived during wedlock should become no more than a kind of “shell game,” then this area of our jurisprudence would indeed be in a deplorable state. This court in Yarmark v. Strickland, 193 So.2d 212 (Fla. 1st DCA 1966), no doubt held similar views when it declared that if either of two men could be the father of a child, the mother was not free to choose between them, and it was not permissible for the mother “or for the court as the trier of the facts to guess which of the two men was the father, and for the court to determine parentage of the child on such speculation.” Id. at 214. We do not agree, however, that pronouncements such as appear in Yarmark would now preclude the filing of a complaint for determination of which of two possible men is a child's natural parent. We note that the Yarmark court itself limited the effect of its decision by distinguishing it from a case in which “identification of the father is indicated by some admissible test which may be furnished by advancing medical knowledge.” Id. at 215. Later, in Roe v. Macy, 363 So.2d 616 (Fla. 1st DCA 1978), this court pointed out this distinguishing feature of Yarmark, that is, in Yarmark, “medical or scientific evidence was lacking.” Id. at 617.

There can now be little doubt that medical knowledge has advanced far beyond that generally in use in paternity cases when Yarmark was decided. With the advent of human leukocyte antigen (HLA) testing, used in conjunction with red blood cell testing, it is now possible to determine the probability of paternity in excess of 90%. See, Carlyon v. Weeks, 387 So.2d 465, 466 (Fla. 1st DCA 1980).

In addition to advances in medical science, there have been significant developments in the law relating to determination of paternity. One of the most notable cases reflecting changes in this area is Gammon v. Cobb, 335 So.2d 261 (Fla.1976), in which the court held that a married woman has standing under Florida’s paternity statute, Section 742.011, Florida Statutes (1981), to maintain a proceeding to establish that a man other than her husband was the natural father of children conceived and born to her during the existence of her marriage. The essence of this decision is that although the statute limits the right of action to “unmarried” females, the court found such a limitation unconstitutional. Although we recognize the distinctly different factual circumstances in Gammon (the mother alleged she had no contact with her legal husband for twenty years), we do not view this or other decisions as imposing an obstacle to the joinder in the same action of both the husband and another person alternatively alleged to be the child’s father. The public policies underlying the enactment of legislation calling for state intervention in determining paternity and in enforcing the duty of support would seem to be best served by allowing the state’s action to be taken in the most expeditious manner possible. In this case it appears to us that joinder of both likely fathers in the same action would be within the department’s prerogatives. See, Section 409.2551, Florida Statutes, “Legislative intent.”

The trial court’s ruling sustaining appellee’s objection to appellant’s motion that he submit to HLA testing was grounded solely on the conclusion that appellants’ complaint failed to state a cause of action against him. Under our decision today, that ruling no longer has validity, and must also be reversed. However, nothing in this opinion should be construed to preclude ap-pellee from seeking a protective order on such grounds as he may deem appropriate. We express no opinion whether any motion for protective order should be granted or denied, because such a determination is beyond the scope of this appeal.

REVERSED.

WENTWORTH and JOANOS, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Harold James WALL, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. AR-485.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.

      Lee S. Damsker, of Maney and Damsker, Tampa, for appellant.
    Joseph W. Lawrence, II, Department of Professional Regulation, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an administrative order whereby his license to practice medicine was rescinded. We find that the order appealed is impermissibly vague and we therefore remand the cause for entry of another order.

After a hearing before the Board of Medical Examiners, appellant’s license to practice medicine in Florida was suspended until he satisfies several conditions for reinstatement, including a requirement that he:

. . . clarifies the facts surrounding his surrender of his license to practice medicine in the State of California.

However, the transcript of the proceedings before the Board indicates that appellant did fully explain the circumstances involved in the surrender of his California license. The transcript also indicates that several Board members expressed differing concerns and opinions as to what type of clarification was desired. When appellant’s counsel then indicated his confusion and sought further explanation the Board was not responsive. In these circumstances the clarification requirement is impermissibly vague.

Consistent with appellant’s request for relief, we reverse and hereby remand the cause for entry of another order.

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


author: SCHWARTZ, Chief Judge.

text:
    Vera KINNON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1684.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Nov. 17, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The sole question raised in this appeal from the appellant’s conviction for grand theft is the claim that the prosecutor’s final argument improperly referred to her failure to testify. We affirm.

After she was found with 49 stolen dresses in a truck which had left the scene of a retail store break-in shortly before, Kinnon was accused of their theft. She did not take the stand at the trial. Her counsel’s final argument stressed the fact that only two males, and not she, had been seen at the burglary itself. In response, the state attorney argued in part as follows:

Ladies and gentlemen, I ask you again to consider the specific facts that the State is proving. The possession of this defendant of that property. The fact that she was sitting in the truck.
The issue is why didn’t anyone see her before that. How come people only talked about two people or two black people around the scene and no more. That was the BOLO that came out, two black people, so the best information the police had at that time. When the police officer, Officer Bosworth, finally sighted the truck, he saw only two people in the truck, the two black males. That was when he was on 27th Avenue and 8th Street. He pulled in and followed that truck in his testimony from 27th Avenue to 13th Avenue, total of fourteen blocks, about a mile and a half, something like that. You can probably compute the distance as well as anybody. He followed it for several minutes, said it was going at a slow rate of speed, and I asked him, specifically, ‘How far were you away?’ ‘A car length away.’ ‘How many people did you see in the truck?’ ‘Two,’ he said. T only saw two people in the truck,’ so the defendant Kinnon was somehow sitting down, scrunched down, so she couldn’t be seen, couldn’t be seen by the officer, and wasn’t seen by Mr. Trinchet when he tried to follow the car heading east on Aragon and then lost it on the corner of Coral Way and Douglas heading east. He didn’t see anybody else but two people in the car, but I suggest she was in the car just the way she was in the truck, in the front seat of that truck the entire time that Officer Bosworth is following it for thirteen blocks or fourteen blocks down 8th Street. No explanation. If she wasn’t in the truck all that period of time, is there any other explanation. Why are we here?
MR. LAPIDUS [defense counsel]: Your Honor, I would ask for a side bar.
THE COURT: It’s not necessary for a side bar. He just made a statement. It’s argument.
MR. LAPIDUS: Judge.
THE COURT: Overruled.
MR. LAPIDUS: Judge, I have a right to now make a proffer to the court here. We are not required to prove anything. She is just commenting on her Fifth Amendment right.
MR. DOHENY [prosecutor]: I am only asking the jury if there is any explanation from anybody or any testimony about any explanation from anybody that night, any reasonable explanation for this person being in that truck and those dresses being in the truck in that person’s possession, and I submit to you, without that explanation, you must find that she knew or should have known that that property was stolen, [emphasis supplied]

At that point, out of the jury’s presence, counsel moved for a mistrial, which was denied, on the ground that the prosecutor’s statements commented on the defendant’s right to remain silent.

We cannot agree that the challenged remarks constituted a comment on the defendant’s fifth amendment rights. Taking them, as we must, Harris v. State, 438 So.2d 787 (Fla.1983), as a whole, the references to the lack of an “explanation” presented by the defendant clearly relate to the inference of guilty knowledge which may be drawn, as the jury was instructed without objection below, from her unexplained possession of the recently stolen dresses. Such a comment is a perfectly permissible one. Chavers v. State, 380 So.2d 1180 (Fla. 5th DCA 1980), cert. denied, 388 So.2d 1118 (Fla.1980); Cridland v. State, 338 So.2d 30 (Fla. 3d DCA 1976).

Kinnon argues, however, that the “No explanation,” and the “is there any other explanation^]” statements which immediately preceded her counsel’s interruption could reasonably have been regarded by the jury as referring to her failure to testify to explain why she was present in the truck and that they therefore require reversal “regardless of [their] susceptibility to a different construction.” Trafficante v. State, 92 So.2d 811, 814 (Fla.1957); David v. State, 369 So.2d 943 (Fla.1979); Layton v. State, 435 So.2d 883 (Fla. 3d DCA 1983). Whether or not this might have been true if these phrases had stood alone, that was not what happened here. As Harris emphasized, allegedly offending remarks may not be wrenched from the context of all that the jury heard on the subject in question. In this case, any improper inference which may have arisen in the jury’s mind from what were merely ambiguous and generalized references to the defendant’s lack of an explanation was immediately dissipated by the prosecutor’s explicit statement that there was no such contention and that only a concededly proper reference was involved. When, as here, they were at once and clearly disabused of any such notion, we refuse to indulge the anyway dubious presumption that the jurors inevitably drew the wrong conclusion from apparently innocuous statements in which only lawyers and judges sensitized to possible error could even detect a sinister implication. Cf., e.g., Jones v. State, 44 Fla. 74, 32 So. 793 (1902) (applying presumption of correctness in trial court’s conduct of trial); Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979) (statute construed to render it constitutional, even if reasonably susceptible of another, unconstitutional interpretation). We do not, as in obedience to Hoffman v. Jones [280 So.2d 431] we could not, hold that there was “harmless error” in the argument. Harris v. State, supra; David v. State, supra. Rather, we find that there was no error at all.

Affirmed.

      . The jury instructions included the following:
      Proof of possession of recently stolen property unless satisfactorily explained, gives rise to the inference that the person in possession of the property knew or should have known that the property had been stolen.

      . We would agree that the reversible effect of an unequivocal reference to the defendant’s failure to testify could not be “cured” in this manner.


author: PER CURIAM.

text:
    Sally LAMENDOLA and Joseph Lamendola, her husband, Petitioners, v. The Honorable Rhea Pincus GROSSMAN, Judge of the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, Respondent.
    No. 83-1855.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Nov. 17, 1983.

      Weaver, Weaver & Lardin and Marilyn P. Liroff, Fort Lauderdale, for petitioners.
    Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

On the virtually indistinguishable authority of Layne v. Grossman, 430 So.2d 525 (Fla. 3d DCA), rev. denied, 438 So.2d 832 (Fla.1983),and McDermott v. Grossman, 429 So.2d 393 (Fla. 3d DCA 1983), we conclude that the trial court should have granted petitioners’ motion to disqualify. The trial judge’s alleged threat to the petitioners’ attorney to the effect that the judge would “deal with” the attorney for having “gone over” the judge’s head; other allegedly extrajudicial conduct, which was both derogatory of the attorney and tended to undermine the presentation of a client’s case; and other alleged incidents of antagonism directed at the attorney, all make well founded the petitioners’ stated fear they would not receive a fair and impartial trial at the judge’s hands.

Seeing no reason to repeat in greater detail the allegations of the motion to disqualify (which must be accepted as true for the purpose of these proceedings), we find that the moving papers are sufficient to require disqualification, that the motion was filed without inordinate delay under the circumstances of this case, and that the writ of prohibition should be granted. Writ issued and cause remanded to the Eleventh Judicial Circuit with directions that it be blind filed in accordance with established procedures.


text:
    Michael ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2494.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, 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.

Michael Anderson appeals from his con-' viction of armed burglary and sexual battery.

The victim, a thirteen year old boy, awoke to find a man armed with a pocket knife in his bedroom. The man assaulted him sexually. Because of the darkness, the victim did not have a clear view of the assailant and knew only that he was black. At the lineup the victim could not identify any suspect. The police lifted two fingerprints from the windowsill of the victim’s home which matched appellant’s fingerprints and also discovered semen and pubic hairs consistent with samples taken from appellant.

On the opening day of trial, defense counsel moved to withdraw on the ground that it might become necessary for him to testify that the victim said during the lineup, “He’s not there.” The trial court denied counsel’s motion to withdraw. After the victim testified, the defense counsel moved for a mistrial. The court denied this motion as well.

Appellant raises two points on appeal. First, he contends the trial court erred in denying his motion to withdraw and in denying his subsequent motion for a mistrial. Second, he contends the trial court should have excluded testimony concerning changes in the victim’s behavior pattern following the attack.

We find no merit in appellant’s first point. Appellant deposed the victim prior to trial and could have made a timely motion to withdraw, had he established that the victim’s recollection differed from the statements made at the lineup. The trial judge did not abuse his discretion when he denied counsel’s eleventh hour motion to withdraw based on a mere speculation as to the nature of the victim’s testimony.

We agree with appellant’s contention that the trial court should have excluded the testimony related to the changes in the victim’s behavior pattern following the assault. See Bynum v. State, 76 Fla. 618, 622, 80 So. 572, 573 (1918).

The essential elements to be proven were the sexual intercourse, the age of the woman, her unmarried state, and previous chaste character. What happened after the criminal act in no wise affected either the guilt or innocence of the accused. Her giving birth to a dead child, her sufferings, the impairment of her health, were not material to the issues involved.

However, we do not conclude the admission of this testimony in the case sub judice requires a new trial. Our review of the record satisfies us that the testimony had no real prejudicial effect. In view of the substantial evidence establishing appellant’s guilt, we hold that the admission of this testimony constituted harmless error.

Accordingly, we affirm appellant’s conviction and sentence.

AFFIRMED.

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


text:
    Richard David WALKER, Jr., Appellant, v. Elizabeth WALKER, Appellee.
    No. AU-288.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Rehearing Denied Nov. 16, 1983.
    Gene T. Moss, Jacksonville, for appellant.
    Elliot Zisser, of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellee.
   WENTWORTH, Judge.

Petitioner seeks review by certiorari of an order granting respondent discovery of the financial records of both petitioner and petitioner’s spouse. We find that the order, to the extent that it permits discovery of the financial records of petitioner’s spouse, departs from the essential requirements of law.

Respondent has filed an action seeking to establish a foreign dissolution decree as a Florida judgment. Petitioner’s spouse is not a party to the action. In these circumstances the financial records of this non-party are not legally related to any pending claim or defense, nor is the information shown to be reasonably calculated to lead to the discovery of evidence admissible in the proceeding now before the court. Fla.R. Civ.P. 1.280(b)(1) therefore does not allow discovery of such information.

Accordingly, to the extent that it permits discovery of the financial records of petitioner’s spouse, the order under review is hereby quashed.

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


text:
    Jeffrey R. STERMAN, Appellant, v. FLORIDA STATE UNIVERSITY, FLORIDA BOARD OF REGENTS, Appellee.
    No. AT-105.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Rehearing Denied Nov. 18, 1983.
    John D. Carlson, Woods & Carlson, Tallahassee, for appellant.
    Patricia A. Draper, Associate University Atty., Florida State University, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Beheshtitabar v. F.S.U., 432 So.2d 166 (Fla. 1st DCA 1983).

LARRY G. SMITH, WENTWORTH and NIMMONS, JJ., concur.


author: MILLS, Judge.

text:
    Steve Randall DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. AK-446.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.

      Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this appeal from his conviction for grand theft, Section 812.014, Florida Statutes (1981), Downs contends that the trial court erred in denying his motion to suppress, in denying him his constitutional right to represent himself, and in allowing certain testimony by one of the State’s witnesses. We disagree and affirm.

The record shows that on 11 September 1981, Thomas Fawley was hitchhiking along Interstate 10 in Washington County en route to Jacksonville. With him he carried two suitcases, one containing his clothing and the other containing a set of tools that he used in his employment.

Downs, who was driving east along Interstate 10, stopped and offered Fawley a ride. In the car with Downs was a woman and her 13-year-old son, Parker Altice. While driving down the highway, Downs and Fawley became engaged in conversation. Eventually, Fawley disclosed the fact that one of his suitcases contained a set of tools. According to Fawley, Downs repeatedly offered to buy the tools from him, but Fawley refused.

Downs pulled off of Interstate 10 at the Caryville exit and told Fawley that was as far as he was going. He also told him that he was going to some campsites in Caryville to pick up some personal belongings, following which he and the woman were going to Houston, Texas. Fawley got out of the car and set a beer that he had been drinking on the pavement. As he was about to reach into the back seat for his suitcases, Downs drove off, laughing. The theft took place in Washington County.

After Downs drove away, Fawley ran to a gas station at the bottom of the exit ramp, called the Washington County Sheriff’s Department and reported an “armed robbery.” Washington County deputies were dispatched to investigate. Officer Don Wade of the Holmes County Sheriffs Department, who heard the report go out from the Washington County Sheriff’s Department over his radio, responded and picked Fawley up at the gas station. The two of them went to the Caryville campsites to look for Downs and were met there by two Washington County deputies, Officers Haddix and Haddock. Fawley got into Officer Haddock’s patrol car.

Meanwhile, Officer Kolmetz, an investigator with the Washington County Sheriff’s Department, received the report to be on the lookout for a black Chevrolet driven by a white male with a white female and a white juvenile as passengers. He was proceeding towards the Caryville campsite area where the other units were located when he saw a car matching that description. As he began to give chase, the car stopped. It was being driven by Downs, and it contained the woman and the juvenile. This stop took place in Holmes County.

When Downs got out of the car, Officer Kolmetz told him that a robbery had been reported and that a vehicle matching the description of the one he was driving was involved. Downs volunteered that he had bought several unnamed items from a gentleman for $60. At that point, Officer Haddock arrived at the scene along with Faw-ley. Fawley got out of the car and immediately identified Downs as the one who had driven off with his suitcases. Officer Kol-metz then placed Downs under arrest for grand theft and took him to the Washington County Jail.

Downs signed a “consent to search” form at the jail, giving the officers permission to search his car. Washington County authorities searched the car and found Fawley’s two suitcases containing the tools and clothing.

As he did below, Downs contends on appeal that his arrest, because it was made in Holmes County by a Washington County deputy, was illegal and that the two suitcases and his statement to Officer Kolmetz should have been suppressed as the fruit of that arrest. We disagree.

Based on the information he had, Officer Kolmetz had reasonable grounds to stop Downs’ car pursuant to Section 901.-151, Florida Statutes (1981). It does not matter that the stop took place in Holmes County because law enforcement officers may conduct investigations outside their jurisdiction as long as the subject matter of the investigation originated within their jurisdiction. Wilson v. State, 403 So.2d 982 (Fla. 1st DCA 1980). It is undisputed that the subject matter of this investigation originated in Washington County. Officer Kolmetz was therefore entitled to make this investigatory stop.

Moreover, once Fawley identified Downs, Officer Kolmetz had probable cause to make an arrest. Brown v. State, 315 So.2d 534 (Fla. 3d DCA 1975). This he could do pursuant to his authority to make a citizen’s arrest. State v. Phoenix, 428 So.2d 262 (Fla. 4th DCA 1982). The arrest being legal, the trial court did not err in denying Downs’ motion to suppress.

We also find no merit in Downs’ contention that the trial court erred in denying him his constitutional right to represent himself. It does not appear from the record that he ever unequivocally asserted that right. Rather, the record indicates that he was merely dissatisfied with the attorney appointed to represent him. Downs cannot complain that he was not allowed to represent himself at trial when he never asserted that right below. Raulerson v. State, 437 So.2d 1105 (Fla.1983).

At trial, Parker Altice was allowed to testify over objection that Downs had told him and his mother that if Fawley showed up for the trial, he would simply plead guilty. Downs contends that this was error because withdrawn guilty pleas or offers to plead guilty are inadmissible under Rule 3.170(f), Florida Rules of Criminal Procedure, and Section 90.410, Florida Statutes (1981). This contention is without merit. These statements were made to Parker and his mother. No law enforcement officers were present. Therefore, there was no withdrawn guilty plea or offer to plead guilty.

There being no error below, the conviction is affirmed.

SHIVERS and ZEHMER, JJ., concur.


author:
ZEHMER, Judge.
      MILLS, Judge,

text:
    In the Interest of T.S.J., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. AP-476, AP-477.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Clyde M. Collins, Jr., Asst. Gen. Counsel, Jacksonville, for appellee.
   ZEHMER, Judge.

The juvenile appellant in this case was found guilty of committing a burglary and violating the conditions of a previously imposed Community Control Program. As a result, he was sentenced to fifteen years on the burglary charge and was committed to the Department of Health and Rehabilitative Services for an indeterminate period of time, not to exceed his nineteenth birthday or the maximum time allowed by law. On this appeal, T.S.J. seeks reversal of the judgment and sentence, urging three points: (1) legal insufficiency of the circumstantial evidence to prove guilty knowledge and intent; (2) erroneous denial of his repeated motions for continuance to permit appellant to obtain exculpatory testimony from another young boy involved in the alleged burglary; and (3) the trial court’s failure to follow mandatory provisions of Section 39.09, Florida Statutes (1981). We reverse.

T.S.J. is a thirteen year old male who is unable to read and attends special classes for emotionally handicapped children. The record reflects a history of behavioral problems and also indicates that at the time of the alleged burglary, T.S.J. was receiving psychiatric counseling as an outpatient at University Hospital in Jacksonville.

On May 25,1982, T.S.J. was charged with burglarizing a public school, and upon recommendation of a juvenile counselor, the trial court withheld adjudication on that charge and placed T.S.J. in a Community Control Program with specific conditions. Within several months, another petition for delinquency was filed which alleged that T.S.J. had burglarized his cousin’s private residence. He was also charged with violating the conditions of his Community Control Program. T.S.J.’s motion for judgment of acquittal was denied at trial and he was adjudicated guilty on both charges.

Regarding appellant’s first point, we hold that the circumstantial evidence relied upon by the state was legally insufficient to prove the offense charged. T.S.J. was charged with violating Section 810.02, Florida Statutes (1981), which provides, in part:

‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

There are three essential elements of burglary: (1) knowing entry into a structure; (2) knowledge that such entry is without permission; and (3) criminal intent to commit an offense within such structure.

It is fundamental that in a circumstantial evidence case the evidence must not only prove guilt beyond a reasonable doubt but, also, must be sufficient to exclude every reasonable hypothesis of innocence. Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958); D.M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981); J.O. & R.G. v. State, 384 So.2d 966 (Fla. 3d DCA 1980). The circumstances proved in this case fail to exclude a reasonable hypothesis of innocence.

The alleged burglary was supposedly committed in concert with Ricky, who is T.S.J.’s cousin, and Ricky’s girlfriend, Montrae. The burglarized apartment was rented and occupied by Dianne, who is Ricky’s sister and T.S.J.’s cousin, and Earline, Dianne’s part-time roommate. Dianne had given Montrae a place to stay from time to time and testified that it was not unusual for Montrae and Ricky to be at her apartment, where they occasionally stayed overnight. Ricky kept clothes and personal effects in Dianne’s apartment and T.S.J. had visited the apartment on several occasions when Ricky was there.

On the evening of August 26, 1982, Earline and Dianne left the apartment around 6 p.m., locking the back door. The following day, Dianne and Earline returned to the apartment and reported to the police that someone had broken in and taken two cameras, a bottle of wine, a sweater, a wallet, and a container with several pennies. Both Dianne and Earline testified that neither ■T.S.J., Ricky, nor Montrae had permission to enter the apartment on that evening, but there was no testimony that T.S.J. had knowledge of this lack of permission to enter the apartment.

Sgt. Lee of the Nassau County Sheriff’s Department testified that T.S.J., Ricky, and Montrae were picked up and interviewed regarding the burglary. After signing a waiver of his right to an attorney and consenting to give a statement, T.S.J. told Sgt. Lee that Ricky had pushed open the rear door of the apartment and that after the three of them had entered Montrae handed T.S.J. a sweater that she had picked up in the apartment. T.S.J. said that he went to the kitchen, made an ice cream cone, and waited for the others. After the trio left, they went to a gas station and T.S.J. paid for some gas with the pennies taken from the apartment. Sgt. Lee said, however, that T.S.J. denied having taken the pennies. One of the stolen cameras was later seen in Montrae’s possession, and the other stolen property was recovered from an unspecified location in the Callahan area.

At trial, T.S.J. testified in his defense that he knew that Ricky and Montrae had been staying in Dianne’s apartment from time to time and denied knowing that he was not supposed to enter the apartment that evening. He did not think that entering the apartment was a crime because Ricky and Montrae were staying there, and he did not know that the property taken did not belong to Ricky or Montrae. He further testified that he did not see Ricky push the back door open and that he did not know whether the door had been locked. The state, although it had negotiated pleas with Ricky and Montrae, did not call either as a witness to implicate T.S.J. in the commission of the burglary. In fact, T.S.J. attempted to call Ricky to testify in his defense, expecting him to give exculpatory testimony, but Ricky declined to answer questions, asserting his Fifth Amendment right against self-incrimination.

There was no evidence establishing that T.S.J. knew that his cousin Ricky was not authorized to enter his sister’s apartment on this particular evening, that T.S.J. knew that the property removed by Ricky and Montrae did not belong to them, that any of the stolen property was found in T.S.J.⅛ personal possession, or that T.S.J. knowingly entered the apartment without permission and committed or even intended to commit an offense of any kind therein. We agree with appellant that it is reasonable to infer that T.S.J. entered his cousin’s apartment in the belief that her brother Ricky and his girlfriend were entitled to do so on this occasion as they had in the past, to pick up their belongings, and that T.S.J. did so without any knowledge of actual or intended criminal wrongdoing. We do not agree with the state that this hypothesis is unreasonable and must be discarded. The evidence was legally insufficient to support the conviction of burglary. See, D.M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981); Harrison v. State, 104 So.2d 391, 394-95 (Fla. 1st DCA 1958).

In view of our disposition of appellant’s first point, it is not necessary to reach the other two points on appeal. Nevertheless, to avoid any error with respect to further proceedings on the charged violations, we feel obligated to point out that strict compliance with the provisions of Section 39.09(3) is mandatory and failure to comply will result in reversible error. W.Y. v. State, 414 So.2d 659 (Fla. 1st DCA 1982); see also, D.C. v. State, 436 So.2d 203 (Fla. 1st DCA 1983); Rhoden v. State, 421 So.2d 780 (Fla. 2d DCA 1982). Similarly, Section 39.11 must be read in pari materia with Section 39.09, and failure to strictly comply with the requirements of that section may also result in reversible error.

We note that T.S.J. admitted “technical violations” of the conditions of his Community Control Program. Because his conviction of burglary of a dwelling must be reversed, however, we cannot predict with certainty what adjudication or sentence the trial court would have imposed upon T.S.J. for the Community Control violations standing alone. Therefore, the judgment must be reversed, the sentence vacated, and the case remanded for further proceedings on the petition charging violation of the Community Control.

The adjudication of guilt is REVERSED, the sentence of commitment to the Department of Health and Rehabilitative Services is VACATED, and the case is REMANDED for further proceedings consistent herewith.

SHIVERS, J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurring in part and dissenting in part:

I concur in part and dissent in part.

I agree with the majority that strict compliance with the provisions of Section 39.-03(3) is mandatory and failure to comply results in reversible error. W.Y. v. State, 414 So.2d 659 (Fla. 1st DCA 1982); see also, D.C. v. State, 436 So.2d 203 (Fla. 1st DCA, 1983); Rhoden v. State, 421 So.2d 780 (Fla. 2d DCA 1982). I also agree with the majority that Section 39.11 must be read in pari materia with Section 39.09, and failure to strictly comply with the requirements of that section may also result in reversible error.

The trial court also erred in committing T.S.J. without mandatory statement of the specific dispositional reasons and without entering an order revoking T.S.J.’s community control.

I would reverse on these errors and remand to the trial court for correction.

Although the majority correctly states the facts, it overlooked reciting that upon Dianne’s return to her apartment the door was unlocked and a window screen was removed. The door had been locked and the screen in place when she departed.

The trial court correctly denied T.S.J.’s motion for judgment of acquittal because the evidence adduced at trial was sufficient to prove the charge of burglary. I would affirm on this issue.

Dianne testified that neither T.S.J. nor the others had permission to be in the apartment. Entry into the apartment was obviously made through a locked door or a latched window screen. T.S.J. made and ate an ice cream cone while in the apartment and later bought gasoline with pennies taken from the apartment.

The trial court concluded from the evidence presented to it that the only reasonable interpretation was that T.S.J. entered the apartment to commit burglary. I agree.

A party moving for a judgment of acquittal admits all facts adduced in evidence and every conclusion favorable to the State which is fairly and reasonably inferable therefrom. Victor v. State, 141 Fla. 508, 193 So. 762 (1939). A trial court should rarely, if ever, grant a motion for judgment of acquittal based on the State’s failure to prove mental intent. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982). The test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude. Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978). The circumstantial evidence presented at this trial is sufficient to withstand a motion for judgment of acquittal and is sufficient to support the conviction. The evidence is also inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977).

The trial court did not abuse its discretion in denying T.S.J.’s motion for continuance. I would affirm this issue.

T.S.J. contended that the State was deliberately delaying the disposition of the other perpetrators’ cases to prevent them from giving exculpatory testimony for him. He argues that Lawley v. State, 330 So.2d 784 (Fla. 1st DCA 1976), expressly prohibits such tactics. The record in Lawley establishes that the plea bargain in that ease was conditioned on the requirement that the codefendants invoke the Fifth Amendment and not testify in the remaining defendant’s trial. Here, the record contains only allegations and no evidence of such prosecu-tional misconduct. When the co-perpetrator was called to testify, he invoked his Fifth Amendment right and refused to testify. Lawley was not violated. There is no evidence in this case that the State was intentionally suppressing evidence.


text:
    Scott M. DALTON, Appellant, v. STATE of Florida, Appellee.
    No. AQ-92.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Clyde M. Collins, Jr., Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences entered after nolo pleas to charges of manslaughter, aggravated battery, and tampering with evidence. Appellant’s plea precludes direct appellate review of the issues which he now seeks to present, and we therefore dismiss the appeal.

Appellant pled nolo contendere without reserving any issue for appellate review, and did not thereafter seek to withdraw his plea. Appellant now asserts that he received ineffective assistance of counsel and that an inadequate factual basis for the plea existed. In the circumstances of this case these issues may not be initially raised on direct appeal. Cf., Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

The appeal is hereby dismissed.

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


author: WIGGINTON, Judge.

text:
    AGRICO CHEMICAL CO. and Underwriters Adjusting Company, Appellants, v. Norma J. TYLER, Appellee.
    No. AQ-361.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    Charles E. Bentley and C. Kenneth Stuart, Jr., of Holland & Knight, Bartow, for appellants.
    George B. Cappy, Tampa, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s award of wage loss benefits to claimant Tyler. Substantial competent evidence supports the award and we affirm.

Also raised by appellants is a question concerning the deputy commissioner’s preliminary disposition of entitlement to an attorney’s fee. The deputy commissioner’s order declares that: “Claimant’s attorney is entitled to a fee which shall be determined at a later hearing.” Appellants, interpreting that statement as assessing against them liability for claimant’s attorney’s fee to be determined later, have pointed out that claimant at no time requested an attorney’s fee award and such an award is not due under the criteria enunciated in section 440.34, Florida Statutes. We do not interpret paragraph two as an assessment of attorney’s fees against appellants and disregard any implication to that effect.

AFFIRMED.

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


text:
    Billie Lee MAYNARD, Appellant, v. Maura K. MAYNARD, Appellee.
    No. AR-370.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    John R. Forbes, P.A., Jacksonville, for appellant.
    Jack C. Harris, Jacksonville, for appellee.
   MILLS, Judge.

Husband appeals from the trial court’s order which awarded his interest in the marital home to the wife as lump sum alimony. Having studied the record and briefs of the parties, we do not feel that the trial court abused its discretion in this case. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Johnny HERBERT, Appellant, v. STATE of Florida, Appellee.
    No. AR-430.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Herbert appeals his conviction for burglary of a structure. He contends the information alleged only burglary of a structure; therefore, the trial court erred in charging the jury on burglary of a dwelling. We affirm.

Generally, alleged errors in jury charges relating to a higher offense should not be considered when the charge could not reasonably have contributed to the conviction. Dixon v. State, 101 Fla. 840, 132 So. 684 (1931); Barton v. State, 72 Fla. 408, 73 So. 230 (1916). Herbert was convicted of the lesser offense of burglary of a structure. He was not convicted of burglary of a dwelling, the subject of the allegedly erroneous jury charge.

But, Herbert contends, the charge could have contributed to his conviction. He maintains that the jury exercised its pardon power in convicting of burglary of a structure and, had the jury not been given the option to convict of burglary of a dwelling, it would have exercised its pardon power and acquitted him. We are unconvinced.

It is not clear that the jury exercised its pardon power when it found Herbert guilty of burglary of a structure. Perhaps the jury considered him guilty of that charge. It is certainly not reasonable to further assume that Herbert would have been acquitted if the trial court had not instructed the jury on a crime for which he was not convicted. In any event, the trial court could instruct the jury on burglary of a dwelling because the information alleged that offense.

A document charging a statutory offense does not have to recite the precise language of the statute, but must be clear as to the offense charged. Language of equivalent import will suffice. Gibbs v. Mayo, 81 So.2d 739 (Fla.1955).

Count I of the information charged:

CURTIS A. GOLDEN, State Attorney for the First Circuit of Florida, prosecuting for the STATE OF FLORIDA, charges that JOHNNY LEE HERBERT, on August 22, 1982, at and in Escambia County, Florida, did unlawfully enter or remain in a structure, to-wit: a motel room, located at 1801 West Cervantes Street, in the County and State aforesaid, the property of Dondeaio Hosea as owner or custodian thereof, with the intent to commit an offense therein, to-wit: Theft, in violation of Sections 810.02(1) and 810.-02(3), Florida Statutes.

Section 810.011(2), Florida Statutes (Supp.1982), defines “dwelling”:

“Dwelling” means a building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.

The information adequately charged burglary of a dwelling because a motel room is necessarily a dwelling within the meaning of Section 810.011(2), Florida Statutes (Supp.1982).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Charles ATWOOD d/b/a Miracle Strip Security Service and Kent Insurance Company, Appellants, v. Ruben HENDRIX, Appellee.
    No. AS-62.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    Kathleen V. McCarthy, Hialeah, for appellants.
    Norton Bond, Pensacola, for appellee.
   MILLS, Judge.

The issue in this appeal is whether the trial court erred when it failed to find that Hendrix, the plaintiff below, was guilty of comparative negligence as a matter of law for running in the dark in a strange and unfamiliar area. The record shows, however, that this issue was never raised below. Issues not presented to the trial court will not be considered for the first time on appeal. Dober v. Worrell, 401 So.2d 1322 (Fla. 1981).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Herbert MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-802.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT, and JORGENSON, JJ.
   PER CURIAM.

The sole point on appeal is whether the defendant is entitled to a new trial where a lab technician testified that the defendant’s fingerprints matched those taken from a master file of persons previously booked at the Dade County jail, thereby implying that the defendant had a prior arrest. Viewing the record in light of this contention, we find that the curative instruction given by the court was sufficient to dissipate any prejudicial effects of the technician’s comment. Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978) (if requested, curative instruction would have corrected any prejudice to defendant caused by reference to commissary slips which could only have been signed by one in jail), pet. for review denied, 402 So.2d 613 (Fla.1981); Williams v. State, 354 So.2d 112 (Fla. 3d DCA 1978) (reference by witness to fact that defendant had been in prison cured by instruction); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977) (denial of motion for mistrial proper when officer’s statement that he recognized the defendant from “previous things” was subject of curative instruction). See also Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982) (same result where reference is to “mug shot” of defendant).

Accordingly, we affirm.


text:
    James DONNELL, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    No. 82-1425.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Leo B. West, Miami, for appellant.

      Goodhart, Rosner & Green, Jeanne Hey-ward, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

James Donnell, plaintiff below, appeals from a summary judgment entered in favor of the defendant-appellee Industrial Fire & Casualty Insurance Co. This is the second time that this case has been before this court following entry of a summary judgment. Again, we reverse.

The facts and procedural history of this case may be found in Donnell v. Industrial Fire & Casualty Insurance Co., 378 So.2d 1344 (Fla. 3d DCA 1980). After remand from this Court, appellee again moved for summary judgment, which was granted. From the transcript of the hearing it appears that the trial court was persuaded that the issues of failure to cooperate and prejudice were fully litigated in a prior proceeding and that the trial court in the earlier proceeding simply entered the wrong order. We find nothing in the record which supports the conclusion that there has been a final adjudication of these issues.

It is well settled in Florida that the defense of lack of notice and other breaches of a cooperation clause by an insured require a showing of substantial prejudice to the rights of the insurer. Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla.1976); Travelers Insurance Co. v. Jones, 422 So.2d 1000 (Fla. 4th DCA 1982), rev. denied, 431 So.2d 990 (Fla.1983); United States Fidelity & Guaranty Co. v. Perez, 384 So.2d 904 (Fla. 3d DCA), rev. denied, 392 So.2d 1381 (Fla.1980). This is true in other jurisdictions as well. Cf. St. Paul Mercury Insurance Co. v. Ford, 585 F.2d 760 (5th Cir.1978) (Alabama); Hodges v. State Farm Mutual Automobile Insurance Co., 488 F.Supp. 1057 (D.S.C.1980) (South Carolina); Associated Indemnity Co. v. Insurance Co. of North America, 68 Ill.App.3d 807, 25 Ill.Dec. 258, 386 N.E.2d 529 (1979) (Illinois); Smith v. Travelers Indemnity Co., 32 Cal. App.3d 1010, 108 Cal.Rptr. 643 (1973) (California). But see contra Yale v. National Indemnity Co., 664 F.2d 406 (4th Cir.1981) (North Carolina). As was stated in Ramos v. Northwestern Mutual Insurance Co., supra:

Not every failure to cooperate will release the insurance company. Only that failure which constitutes a material breach and substantially prejudices the rights of the insurer in defense of the cause will release the insurer of its obligation to pay. The question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may well be a question of law.

Id. at 75.

Appellant argues that if there has been any prejudice to the appellee, it is the result of appellee’s own lack of diligence in investigating the claim once it had notice of the accident. This argument has merit. The record reveals that appellee acknowledged notice of the claim on May 21, 1976 and that an outside investigator was assigned the file on May 26,1976. On August 5, 1976 the file was assigned to appellee’s investigator who determined on September 29, 1976 that the insured was in New York and had been there for approximately one month. A printout of the insured’s driver record indicates, however, that the insured received a speeding ticket in Broward County on August 22, 1976. A substantial question of fact emerges from the record as to the issue of prejudice and to the underlying cause therefor if prejudice in fact exists. Since the party moving for summary judgment is required to establish conclusively the non-existence of a genuine issue of material fact, Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039 (Fla. 3d DCA 1981), this contested issue of prejudice raises a factual issue which cannot be resolved by summary judgment. Holinda v. Title & Trust Co. of Florida, 438 So.2d 56 (Fla. 5th DCA 1983); Centennial Insurance Co. v. Tom Gustafson Industries, Inc., 401 So.2d 1143 (Fla. 4th DCA 1981), rev. denied, 412 So.2d 471 (Fla.1982); Tucker v. Seward, 400 So.2d 505 (Fla. 5th DCA 1981); Torres v. Protective National Insurance Co. of Omaha, 358 So.2d 109 (Fla. 3d DCA 1978); Allstate Insurance Co. v. Korschun, 350 So.2d 1081 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1216 (Fla.1978).

Reversed and remanded for an adjudication on the issues of failure to cooperate and prejudice to the rights of the appellee.


text:
    Jabo WOODSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1497.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Bennett H. Brummer, Public Defender, and Sara Bresky Blumberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Jabo Woodson, defendant below, appeals the sentence imposed by the trial court following a jury verdict finding him guilty of robbery with a firearm. The trial court sentenced appellant to life imprisonment with a mandatory minimum sentence of three years for the use of a firearm during the commission of a felony. In addition, the trial court found a number of aggravating circumstances which it felt warranted the retention of jurisdiction over appellant’s sentence. Accordingly, the trial court entered an order stating that jurisdiction would be retained for an indefinite period of time. This the trial court may not do. Section 947.16(3), Florida Statutes (1981), the statute in effect when appellant committed the offense for which he is convicted, allowed a trial court to retain jurisdiction only over the first third of the maximum sentence imposed. Whigham v. State, 404 So.2d 858 (Fla. 1st DCA 1981). Nor may the trial court retain jurisdiction over the first third of the life sentence. While other courts within the state have not yet ruled on this issue directly, see, e.g., Harmon v. State, 438 So.2d 369 (Fla.1983); Hopkins v. State, 418 So.2d 1183 (Fla. 1st DCA 1982); Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982), the Third District Court of Appeal has adopted the position that where a life sentence is imposed, section 947.16(3), Florida Statutes is inappo-site. Since a life span is immeasurable, no calculation of the length of time jurisdiction can be retained can be made. Rodriguez v. State, 424 So.2d 892 (Fla. 3d DCA 1982); Cordero-Pena v. State, 421 So.2d 661 (Fla. 3d DCA 1982). But see Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982) (Cowart, J., dissenting). Appellant’s other point on appeal is without merit.

Affirmed as to appellant’s conviction. The mandatory minimum three year sentence for the use of a firearm during the commission of a felony is left undisturbed. The remaining portion of the sentence is vacated for entry of a sentence not inconsistent with this opinion.


author: HENDRY, Judge.

text:
    In re The Estate of Helena HATCHER, deceased. Barbara MESSER, Personal Representative of the Estate of Helena Hatcher, deceased, Appellant, v. William L. DODD, Jr., Lillian Dodd and Leo Catsonis, Appellees.
    No. 82-1906.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.

      Kenney, Boswell & Kaufman and Timothy H. Kenney, Palm Beach, for appellant.
    William A. Daniel, Jr., Stuart, for appel-lees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

This cause comes before the court following hearings by the trial court ostensibly to determine whether the decedent, Helena Hatcher, intended to change her domicile permanently from Florida to West Virginia. At issue are two wills, one executed in Florida (the “Miami will”) which left the entire estate to decedent’s granddaughter and a second, subsequent will executed in West Virginia (the “West Virginia will”) which left $7500 to the granddaughter and the balance of the estate to decedent’s brother and sister-in-law. The trial court, in its order, findings of fact, and conclusions of law stated that:

The issue which was tried by this Court was confined solely to whether, on July 14, 1981, Mrs. Hatcher’s domicile was the State of West Virginia when she executed her West Virginia will.

The next paragraph stated:

The initial burden of proof was placed upon Petitioners by the Court and Petitioners proved that Mrs. Hatcher executed a subsequent will which was valid under both Florida and West Virginia law and which will expressly revoked her prior Florida Will.

Because we find that the trial court’s order was overbroad in light of the issues raised by the pleadings as well as the enunciated purpose of the hearings, we affirm the trial court’s determination of the decedent’s domicile, but we remand for further hearings on the substantive validity of the West Virginia will.

Mrs. Hatcher died of cancer on July 20, 1981, in Charleston, West Virginia. Until July 12, she had been a patient at Jackson Memorial Hospital. She was released on that date because her disease had progressed to its final stage and death was imminent. That same day, decedent left Miami, where she had been a long time resident, accompanied by Lillian Dodd, her sister-in-law. On July 13, appellee William Dodd, decedent’s brother, contacted appellee Leo Catsonis, a Charleston attorney, about writing a new will for decedent. Mr. Catsonis went to the Dodds’ home that evening and spoke with the decedent about the disposition of her property. Also that same evening, Dr. Alfred Pfister went to the Dodds’ home at William Dodd’s request, to meet Mrs. Hatcher and to examine her. On July 14, the decedent executed her West Virginia will which expressly revoked the Miami will, and she also executed a general power of attorney in favor of William Dodd. On July 19, the decedent was admitted to Charleston Medical Center in a coma. She died early the next morning. Both wills were immediately filed for probate in their respective locales.

Appellees filed a caveat with the trial court in Miami pursuant to section 731.110, Florida Statutes (1981), and a petition for revocation of probate on the basis that a valid subsequent will had been executed by the decedent. Both the petition and its supporting memorandum of law stated that in accordance with section 732.502(2), Florida Statutes (1981), the Florida trial court lacked proper jurisdiction and venue to determine whether the subsequent will was valid and .that a West Virginia court should be allowed to determine whether the decedent had formed a present intention to make West Virginia her domicile when she executed the West Virginia will. Hearings were held on the petition during the course of which the judge and both attorneys for the parties made statements reflecting the fact that the hearing was concerned solely with the issue of domicile. The final order found that the decedent was a West Virginia domiciliary when she executed the West Virginia will and that said will was valid.

At the outset it must be stated that the trial court had jurisdiction to rule on the validity of the West Virginia will because all of the decedent’s property remained located in Dade County, Florida. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228,2 L.Ed.2d 1283 (1958); In Re Estate of Roberg, 396 So.2d 235 (Fla. 2d DCA 1981); Biederman v. Cheatham, 161 So.2d 538 (Fla. 2d DCA 1964). Additionally, in In Re Estate of Swanson, 397 So.2d 465 (Fla. 2d DCA 1981), the court there discussed whether a Florida court had jurisdiction to rule on the substantive validity of a will executed in another state. The court found that section 732.502(2), Florida Statutes (1981) is concerned with procedural validity only; that is, whether there is compliance with the formal procedural elements of execution. Substantive considerations, such as mental capacity or undue influence, are not dealt with by the statute. When property is devised, the common law dictates that the validity of the will is to be determined according to the law of the situs of the property. The court went on to hold that the common law gives persons challenging a foreign will the right to attack that will in a Florida court, on substantive grounds, based on their interest in property located in Florida. Id. at 466.

Subject matter jurisdiction' — the power of the court to adjudicate the class of cases to which the particular case belongs— is inchoate; the jurisdiction and power of a court remain at rest until called into action by some suitor. The action of the court must be called into exercise by pleading and process. Florida Power and Light Co. v. Canal Authority, 423 So.2d 421, 424 (Fla. 5th DCA 1982). Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice. Bartolucci v. McKay, 428 So.2d 378 (Fla. 5th DCA 1983); Fine v. Fine, 400 So.2d 1254 (Fla. 5th DCA 1981); Defreitas v. Defreitas, 398 So.2d 991 (Fla. 4th DCA 1981). In short:

If a court should render a judgment in a case where it had jurisdiction of the parties, upon a matter entirely outside of the issues made, it would, of necessity, be arbitrary and unjust as being outside the jurisdiction of the subject-matter of the particular case, and such judgment would be void and would not withstand a collateral attack, for upon such matter a presumption would arise that the parties had had no opportunity to be heard.

Florida Power and Light v. Canal Authority, supra, at 424-425, quoting Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); see also Bartolucci v. McKay, supra, at 379.

In the instant case, the petition did not ask the court to determine the validity of the West Virginia will. The hearing was to determine whether the decedent had formed a present intention to leave Florida and to make West Virginia her domicile. It was clearly erroneous for the trial court to rule on the validity of the West Virginia will without proper notice and pleadings. Additionally, by its action, the trial court foreclosed appellant’s opportunity to contest the West Virginia will on the substantive grounds of mental capacity and undue influence and relieved the appellees of having to rebut the presumption of undue influence. Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820 (Fla. 1982); In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Evers v. Zelyk, 422 So.2d 925 (Fla. 2d DCA 1982); In Re Estate of Lamberson, 407 So.2d 358 (Fla. 5th DCA 1981); Meth v. Sparaga, 406 So.2d 97 (Fla. 3d DCA 1981). We find that the trial court erred in holding the West Virginia will valid and we remand this cause to the trial court for further hearings on the substantive validity of the will.

Appellant’s second issue on appeal, whether the testimony of Leo Catsonis should have been barred by section 90.602, Florida Statutes (1981) (the “dead man’s” statute), has merit and warrants further discussion.

Section 90.602 states in relevant part: (1) No person interested in an action or proceeding against the personal representative, ... or survivor of a deceased person . .. shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or insane at the time of the examination.

The test of when the statute applies depends on (1) whether the witness has a personal and immediate interest in the issue being litigated (in which event the law presumes a tendency or at least a temptation to give false, self-serving testimony) and (2) whether the other party to the communication about which testimony is elicited is deceased so that the personal representative is deprived of the decedent’s version of the communication. In Re Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982), rev. denied, 426 So.2d 27 (Fla.1983); Disbro v. Boyce, 124 So.2d 756 (Fla. 3d DCA 1960). An exception to the statute allows testimony concerning execution of a testamentary document. In Re Estate of Parson, supra.

In the instant case, Mr. Catsonis was asked to meet with the deceased to discuss the writing of a new will. On the basis of this conversation, he drafted the West Virginia will, which decedent executed the next day. By the terms of the will, Mr. Catsonis was appointed personal representative of decedent’s estate. He is a named party to this lawsuit by virtue of his position as personal representative under the West Virginia will. If this will is found to be the valid one, Mr. Catsonis will be paid a percentage of the value of the personal property in the estate as a fee for his services as personal representative. If the Miami will is found to be the valid one, Mr. Catsonis takes nothing. It is this situation which makes In Re Estate of Udell, 324 So.2d 703 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 108 (Fla.1976), relied on by appel-lees, inapposite. In that case, the attorney who had drafted the will, and who continued to represent the executor of the estate after the testator died, was allowed to testify as to the conversations he had with the deceased pertaining to the preparation of the will. The court found that any legal fees earned by the attorney would be based on quantum meruit and were not dependent upon the outcome of the will contest. In the instant ease, however, Mr. Catsonis is the personal representative of the estate as well as the attorney who drafted the West Virginia will, and he will earn a fee as personal representative if that will is held valid. It is that immediate and personal interest which invokes the bar of section 90.602, Florida Statutes (1981). We find, therefore, that Mr. Catsonis is an “interested” person within the meaning of the statute. On remand, he may testify as to the execution of the West Virginia will, but he may not testify as to his oral communications with the deceased.

Simply because a party is barred from testifying as to oral communications with the deceased does not mean, however, that he may not be called to testify at all. The statutory prohibition was promulgated to protect estates from claims and allegations made by persons who stood to benefit by their testimony, which claims and allegations could not be rebutted by the personal representative. The statute does not, however, provide a privilege to refuse to testify akin to the privilege against self-incrimination. Heebner v. Summerlin, 372 So.2d 518 (Fla. 4th DCA 1979). The parties to this lawsuit are not immune from testifying. In Re Estate of McClintock, 374 So.2d 93 (Fla. 2d DCA), dismissed, 378 So.2d 346 (Fla.1979). Thus, on remand, the interested parties herein may be called to testify and are competent to testify on all relevant matters except those requiring discussion of oral communications with the decedent.

We have carefully considered all of the other issues raised on appeal and find them to be without merit.

Affirmed as to the finding of decedent’s domicile when she executed the West Virginia will. Reversed and remanded for a determination of the substantive validity of the West Virginia will, subject to the limitations as discussed above.

      . Section 731.201(28), Florida Statutes (1981) defines property as both real and personal property or any interest in it and anything that may be the subject of ownership.

      . “Pleadings” are listed as a declaration, complaint, petition, or cross-bill. Lovett v. Lovett, 112 So. at 776 (e.s.).

      . We find, however, that Mr. Catsonis’ testimony in the hearings on the issue of domicile was harmless error. Since there were independent witnesses also testifying as to the same events, his testimony could be considered merely cumulative.


text:
    John J. O’BRIEN, Appellant, v. BRICKELL TOWNHOUSE, INC., Howard P. Gross, Jerry A. Gross and Alan Telisman, Appellees.
    No. 82-2012.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    John J. O’Brien, Miami, in pro. per.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This appeal comes to the court following the entry of final summary judgment on the basis of res judicata in favor of appel-lees. Appellees raised a final judgment of the Federal District Court for the Southern District of Florida as a bar to the instant cause filed in the Circuit Court for the Eleventh Judicial Circuit of Florida. We affirm.

The law is well settled that a final judgment or decree on the merits by a court of competent jurisdiction constitutes an absolute bar to a subsequent suit on the same cause of action and is conclusive of all issues which were raised or could have been raised in the action. Mercer v. Honda Motor Co., Ltd., 551 F.Supp. 233 (M.D.Fla. 1982); Pumo v. Pumo, 405 So.2d 224 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 469 (Fla.1982); Rhyne v. Miami-Dade Water and Sewer Authority, 402 So.2d 54 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 469 (Fla. 1982). Litigants are precluded from reliti-gating the same issues not only in the same forum, but in a different forum as well. Bennun v. Board of Governors of Rutgers, 413 F.Supp. 1274, 1278 (D.N.J.1976) (“28 U.S.C. § 1738 extended the Full Faith and Credit provisions of the United States Constitution, Art. 4, § 1, to all courts, federal as well as state”); Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977); AGB Oil Co. v. Crystal Exploration and Production Co., 406 So.2d 1165 (Fla. 3d DCA 1981), rev. denied, 413 So.2d 875 (Fla.1982); Title 28 U.S.C. section 1738. In the instant case, all of the requirements for the application of res judicata have been met. Cf. Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982). The cause of action was fully litigated in the federal district court. The extensive findings of fact and conclusions of law which form the basis of the final judgment of that court dispose of all of the issues asserted in both complaints. More importantly, the final judgment resolves adversely to the appellant the ultimate issue of the liability of the appellees. Since the cause of action in the state court is identical to the cause of action in the federal court, the trial court was eminently correct in entering a final summary judgment on the basis of res judicata. “Once a party has had an opportunity to litigate a matter in an action in a court of competent jurisdiction, he should not be permitted to litigate it again to the harassment and vexation of his opponent.” New River Yachting Center, Inc. v. Bacchiocchi, 407 So.2d 607, 609 (Fla. 4th DCA 1981), rev. denied, 415 So.2d 1360 (Fla.1982).

Appellant’s second point on appeal, that the trial court erred in dismissing his original complaint which alleged he was a member of a class of plaintiffs seeking a declaration of their rights under the “Deposit Receipt and Purchase of Sale Agreement,” is now moot. The federal court decision resolved these issues between these parties. Thus, even if we were to decide that the trial court erred in dismissing the class action complaint, something we need not and will not do, the fact remains that appellant has already litigated this claim against the appellees and lost. Therefore, he is no longer within any putative class which may have claims against the appel-lees. Stabinski v. Pirelli Tire Corp., 371 So.2d 679 (Fla. 3d DCA 1979); Jackson v. Alterman Transport Lines, Inc., 301 So.2d 795 (Fla. 3d DCA 1974).

Affirmed.

      . Appellant’s amended complaint dropped the class allegations entirely and proceeded in his name individually.


text:
    The STATE of Florida, Appellant, v. Sametola THOMAS, Appellee.
    No. 82-2197.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Levin v. State (Fla. 3d DCA 1983) (Case No. 82-1681; opinion filed September 13, 1983) [8 FLW 2298]; cf. State v. Ramos, 378 So.2d 1294, 1298 (Fla. 3d DCA 1979) (upholding temporary detention and frisk under “limited circumstances” where observation of bulge under defendant’s clothing, consistent with the outline of a firearm, was coupled with other incriminating facts.)


text:
    Rogelio Alejandro VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2454.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Hernberg & Levin and Daniel Levin, Miami, Gargiulo & McMenimen and Brian J. McMenimen, Boston, Mass., for appellant.
    Jim Smith,- Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Spencer v. State, 133 So.2d 729 (Fla.1961); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).


text:
    John Edward PEACOCK, Appellant, v. Theresa Marie PEACOCK, Appellee.
    No. 82-2679.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Walton & Garrick and Wallace I. Garrick, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Pasco and Krentza, Hal-landale, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The point presented in this appeal is whether the trial court erred in failing to modify a property settlement agreement between the parties which was made a part of the final judgment of dissolution of marriage. The agreement, in material part, provided that the husband would pay child support and that the wife and children would have exclusive possession of the marital home owned by the parties as tenants by the entireties, until the youngest child reached age 18 or the wife left the premises on a permanent basis. Upon the occurrence of either contingency, the house would be sold and the proceeds divided between the parties. Appellant moved the trial court for partition on the ground that the appel-lee had remarried. The agreement was silent as to the co remarriage. nti^gency of the wifes

In support of his petition appellant contended that the right to exclusive use and possession of the home by the appellee should be terminated and the property sold because her remarriage constituted a change in circumstances. The trial court rejected this contention and denied partition. We find no error in the trial court’s ruling and therefore affirm.

There could be some merit in appellant’s position if these provisions had resulted from a final judgment of dissolution imposed by the court upon the parties. However, since these provisions were voluntarily entered into by the parties and made a part of the judgment of dissolution, the trial court was correct in ruling that appellant had not shown his entitlement to partition. Farkas v. Farkas, 426 So.2d 1213 (Fla. 4th DCA 1983).

Affirmed.


text:
    Anne Winnifred MILES, Appellant, v. BARNETT BANKS TRUST COMPANY, N.A., as Personal Representative of the Estate of Inez S. McKeown, Deceased, and Alice M. Moore, Appellees.
    No. 82-2692.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Akerman, Senterfitt & Eidson and Henry J. Whelchel, Miami, for appellant.
    Redfearn & Simon and Edward Simon, Miami, Gillespie, McCormick, McFall, Gilbert & McGee and John P. Shevock, Fort Lauderdale, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Forsythe v. Spielberger, 86 So.2d 427 (Fla.1956).


text:
    ALAN D. FULTON INSURANCE, INC., Appellant, v. FOREMOST INSURANCE COMPANY and Keller Industries, Inc., Appellees.
    No. 83-216.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Welbaum, Zook, Jones & Williams and Dan B. Guernsey, Miami, for appellant.
    Harold C. Knecht, Jr. and David A. Crowley, Coral Gables, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., and Jeffrey A. Sarrow, Fort Lauderdale, and Norman Perl-berger, Philadelphia, Pa., for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Blumberg v. American Fire & Casualty Co., 51 So.2d 182, 184 (Fla.1951); Bennett v. Berk, 400 So.2d 484 (Fla. 3d DCA 1981); Monogram Products, Inc. v. Berkowitz, 392 So.2d 1353, 1354 (Fla. 2d DCA 1981); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416, 419-20 (Fla. 3d DCA 1979).


text:
    Lloyd George ROACH, Appellant, v. The STATE of Florida, Appellee.
    No. 83-338.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The appellant was charged by indictment with first degree murder and two counts of armed robbery with a firearm. He was found guilty by a jury and sentenced by the court to concurrent terms of life imprisonment, on each of the counts.

Appellant contends on appeal that (1) the trial court erred in denying his motions for mistrial based on the ground that the prosecuting attorney made improper remarks in closing argument, (2) the court erred in restricting cross-examination of an alleged eye-witness, and (3) the court erred in commenting upon defense counsel’s trial conduct in the presence of the jury.

We have carefully considered all of appellant’s points and have concluded that no reversible error has been demonstrated. Therefore the conviction and sentences are affirmed.

Affirmed.


text:
    Joann RANDEL, Appellant, v. GENERAL INSURANCE COMPANY, Appellee.
    No. 83-383.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.

      Anthony J. Scremin, Miami, and Richard G. Bartmon, North Miami, for appellant.
    Thompson & Clark and Robert H. Schwartz, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

In May 1982, Randel sued Mary Washington and General Insurance Company, Washington’s liability insurer, for damages allegedly arising out of an automobile accident occurring in 1980. On October 1,1982, Section 627.7262, Florida Statutes (Supp. 1982), enacted earlier that year, went into effect. This statute provides:

“627.7262 Nonjoinder of insurers.—
“(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. “(2) No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. “(3) Insurers are affirmatively granted the substantive right to insert in liability insurance policies contractual provisions that preclude persons who are not designated as insureds in such policies from bringing suit against such insurers prior to first obtaining a judgment against one who is an insured under such policy for a cause of action which is covered by such policy. The contractual provisions authorized in this subsection shall be fully enforceable.”

Invoking the statute, General Insurance contended that its joinder as a co-defendant was impermissible and moved to be stricken from the suit. Randel countered that the statute is an unconstitutional impingement on the rule-making powers of the Supreme Court of Florida in contravention of Article II, Section 3, Florida Constitution, but even if not, it is unconstitutional if applied to a cause of action such as hers, which accrued before the statute’s effective date. The trial court rejected Randel’s arguments and struck General Insurance as a defendant. Randel appeals.

On the authority of Vanbibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), we affirm the order of the trial court insofar as it holds the statute constitutional, but reverse such order insofar as it applies the statute to the present case. The cause is remanded for further proceedings in which General Insurance Company may be joined as a defendant.

Affirmed in part; reversed in part and remanded.

      . Article II, Section 3, provides:
      “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”


text:
    Roberta WATT and Allan Watt, her husband, Appellants, v. METROPOLITAN DADE COUNTY AVIATION DEPARTMENT, etc. et al., Appellees.
    No. 83-605.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.

      Brumer, Cohen, Logan & Kandell and Karen A. Curran, Miami, for appellants.
    Thornton, David & Murray and Carolyn Pickard, Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Eastern Airlines, Inc. v. Dixon, 310 So.2d 336 (Fla. 3d DCA 1975).


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Irving GILBERT, Appellee.
    No. 83-1419.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bradford A. Thomas, Miami, for appellant.
    Neil Carver, Coral Gables, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Employers Commercial Union Insurance Co. of America v. Kottmeier, 323 So.2d 605, 607 (Fla. 2d DCA 1975); see also Mackin v. Applestein, 404 So.2d 789 (Fla. 3d DCA 1981); Federal Insurance Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1107 (Fla.1980).


author: ROBERT P. SMITH, Jr., Judge.

text:
    SHORE ACRES NURSING HOME and Hewitt, Coleman & Associates, Inc., Appellants, v. Ruth STURMS, Appellee.
    No. AR-188.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    Maureen Emmet-Miller of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellants.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The deputy’s order succinctly states, in regard to a Martin v. Carpenter defense, that evidence of a causal relationship between the concealed history and the otherwise compensable injury will be required. Here the carrier relied upon general knowledge for that nexus, which is not enough.

AFFIRMED. Higgins v. Trigil Repair, Inc., 436 So.2d 222 (Fla. 1st DCA 1983).

BOOTH and WIGGINTON, JJ., concur.


text:
    WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. James H. DALE, Appellee.
    No. AR-262.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    See also, Fla., 377 So.2d 171.
    Charles A. Zinn, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Joseph V. Barrs, of Barrs, Williamson & Levens, Tampa, for appellee.
   WIGGINTON, Judge.

Appellant, a self-insured employer, appeals that portion of the deputy commissioner’s order finding no merit to appellant’s statute of limitations defense and finding appellant responsible for past medical bills of appellee Dale, which were awarded in a prior order entered in 1978. We reverse.

Dale was injured in an industrial accident in September, 1976 when he inhaled toxic fumes and thereupon suffered pleuritis and bronchitis. In January, 1977, Dale suffered a disabling heart attack, and claimed it was causally related to the initial injury. In January, 1978, the then industrial claims judge entered an order finding that Dale sustained a compensable injury (pleuritis and bronchitis) as a result of his inhalation of the fumes and directed appellant to pay unpaid medical bills incurred through December 30, 1976 and compensation benefits relating to the injury. Due to differences in medical opinion as to causal relationship of the heart attack to the compensable accident, the parties were ordered to agree upon an additional physician to review the case. Consequently, the causal relationship issue was not resolved at that time.

On October 11, 1979, the supreme court denied certiorari, thus affirming and finalizing the 1978 order. Westinghouse Electric Corp. v. Dale, 377 So.2d 171 (Fla.1979). On October 29, 1979, appellant mailed a check to Dale paying the compensation benefits awarded by the 1978 order. However, the medical bills incurred through December 30, 1976 at that time had not been, nor have they yet been, according to the record, submitted by Dale to appellant for payment or reimbursement. The October 29, 1979 check represented the last payment of any compensation to Dale. No remedial attention has been furnished to Dale by appellant since 1976.

On October 26, 1981, Dale filed a claim for permanent total disability benefits, penalties, interest, costs, and attorney’s fees due to the heart attack. At the January 19, 1983 hearing Dale orally informed the deputy commissioner that he was also seeking, payment of the past medical bills incurred through December, 1976. Appellant’s attorney argued that the statute of limitations had run on that claim for past medicals. In his January, 1983 order, now on review, the deputy commissioner rejected the defense and ruled that “the employer is responsible for the benefits awarded in the prior order, costs, and attorney’s fees.” He otherwise denied Dale’s claim, finding the heart attack not causally related to the industrial accident.

The applicable statute of limitations, section 440.13(3)(b), Florida Statutes (1975), which is substantially the same as section 440.19(2)(b), Florida Statutes (1981), provides in pertinent part:

[A]ll rights for remedial attention under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award a further claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer. (Emphasis supplied.)

Thus, the statute requires the assertion, within two years, of a further claim to enforce a right established by an award. Dale’s further claim, for payment of past medical bills, was not asserted within the two year limitation period imposed by the statute. The filing of the October, 1981 claim which raised only the question of causal relationship of the heart attack did not revive that right to payment of past medicals, which, under the statute, had expired by the time it was claimed again in January, 1983. The deputy commissioner erred in rejecting appellant’s defense of statute of limitations, as, pursuant to 440.-13(3)(b), Florida Statutes (1975), the claim for past medicals is barred.

REVERSED.

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


text:
    SILVER PLUMBING and International Business and Mercantile Reassurance Company, Appellants, v. Stephen GERVIN, M.D., (Arnold Sommer, Employee), Appellee.
    No. AS-75.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.

      Mary Ann Stiles, Tampa, and John F. McMath, Miami, for appellants.
    Israel Abrams of Abrams, Suskin & Ber-glund, North Miami Beach, for appellee Stephen Gervin, M.D.
   PER CURIAM.

This cause is before us on appeal from a final judgment of the deputy commissioner directing the employer/carrier to pay claimant’s physician the balance due on his bill, including interest at 12 percent, and to pay the physician’s attorney “reasonable attorney’s fees, the exact dollar amount to be determined in a separate proceeding.” We affirm the portion of the deputy’s order awarding payment of the balance due on the medical bill. We amend the deputy’s order to award interest at 12 percent on the sum of $2,957.50 from the ninth day of March, 1983, the date the deputy’s order was rendered. We distinguish Zafrilla. v. Volare Shoes, Inc., 394 So.2d 146 (Fla. 1st DCA 1981), in that in Zafrilla the doctors’ and hospital bills were unpaid by the employer/carrier during the more than six years the claim was contested; in the instant case, the employer/carrier timely paid the schedule amount, contesting only the amount of the bill in excess of the fee schedule. With regard to the deputy’s award of attorney fees, the parties agree that this matter is not properly before the court at this time. We therefore decline to decide the question, without prejudice to the parties’ right to obtain review of this issue by timely appeal from a final order awarding attorney fees.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: ZEHMER, Judge. MILLS, Judge,

text:
    Ruby TAYLOR, Appellant, v. TOLBERT ENTERPRISES, INC., and Aetna Insurance Company, Appellees.
    No. AS-105.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.

      Jeffrey W. Watson of Mark Evan Frederick, P.A., Destín, for appellant.
    Charles L. Cetti of Cetti, McGraw, Bear-man & Eddins, Pensacola, for appellees.
   ZEHMER, Judge.

On this appeal, plaintiff Taylor complains that the trial court erred in granting summary final judgment for the defendants, Tolbert Enterprises, Inc., and its insurer, Aetna Insurance Company. We agree and reverse.

In a simple one-count complaint, plaintiff alleged that while she was a guest in Tol-bert’s motel she slipped, fell, and suffered injuries as a result of Tolbert’s negligence in permitting water and sand to accumulate and create a slippery condition on the wooden steps and walkway across the dunes to the beach in front of Tolbert’s motel. A shower used by guests returning from the beach was located adjacent to the place where plaintiff fell, and water and sand draining from the shower created a condition described in plaintiff’s testimony as slippery. The evidence suggested that the condition had existed for some time before plaintiff fell, and plaintiff had observed it while using the walkway during several days before this incident. In her deposition testimony, plaintiff described how she approached the area, observed the water, proceeded to step up, and slipped, and then testified: .

Q. Did you see water and sand on the step that you fell on?
A. Yes.
Q. Was that before or after the fall?
A. When I started to step up, I glanced down and noticed that it was wet, and I was careful in stepping up.
Q. But you saw that it was wet and had sand on it before you stepped on the step, did you not?
A. Yes.
Q. Would you agree with me that the presence of water and sand was not an unusual thing on that walkway and you had walked it before?
A. I agree with your statement.

The court below granted defendant’s motion for summary judgment, finding that:

1. The evidence and depositions on file failed to indicate any negligence on behalf of the defendant, and any dangerous condition of the ramp and walkway allegedly within the knowledge of the defendant was also known to the plaintiff.
2. The accident occurred in broad daylight and it is obvious that the ramp and the step leading thereto were at all times subject to conditions occasioned by the presence of sand and water. The condition of the ramp was open and obvious and was certainly to be expected on a wooden ramp leading from a beachfront motel to the waterfront.

There was evidence before the court that the condition causing the accumulation of water and sand described by the plaintiff had existed for sufficient time to afford adequate notice to the defendant and that such condition rendered the steps slippery. Whether, under these circumstances, the defendant had breached its legal obligation to maintain the premises in a reasonably safe condition was a disputed question of fact to be decided by the jury. That plaintiff testified she had observed the condition and “was careful in stepping up” does not negate defendant’s potential liability for negligently permitting a dangerous condition to exist; it simply raises the issue of comparative negligence. Even though the alleged negligent condition was found by the trial court to be open and obvious, it was error for the trial court to enter summary judgment for the defendant. Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980). See also Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979); Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980).

REVERSED and REMANDED.

SHIVERS, J., concurs.

MILLS, J., dissents, with opinion.

MILLS, Judge,

dissenting:

I dissent. I would affirm.

I would adopt the trial court’s opinion as stated in its Final Summary Judgment and quoted in part in the majority opinion.

The evidence presented to the trial court which is quoted in the majority opinion clearly shows there is no genuine issue as to any material fact.

Summary judgment was properly granted in this classic case for the rendering of a summary judgment. Certainly, an individual visiting the beach who is fully aware of a collection of sand and water on a walkway, was aware of it for several days, and was aware of it at the time she deliberately stepped in it, does not raise a factual issue for jury consideration.


text:
    DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS’ COMPENSATION, and Ida Pearl Mack, Appellants, v. CIRCLE T-BONE RANCH and New Hampshire Insurance Company, Appellees.
    No. AS-112.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    Douglas P. Chanco, Tallahassee, for appellants.
    Rollin D. Davis, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner denying the Division’s motion to tax costs. We reverse.

On January 22, 1982, an order was issued on the workers’ compensation claim of Ida Pearl Mack denying her wage-loss benefits on the ground of an inadequate work search; claimant thereafter sought appellate review of that order. Claimant was found to be insolvent, and the cost of preparation of the record on appeal was paid by the Division of Workers’ Compensation Administrative Trust Fund, pending final disposition of the costs on appeal. On August 6,1982, this court remanded the case to the deputy for consideration of a settlement, directing that the Division be notified and given an opportunity to be heard relative to recovery of any costs. The Division filed a motion to tax costs on August 12,1982. On August 13, claimant, her attorney, and the attorney for the employer/carrier signed a joint stipulation settling the case for $2,769.45 compensation, excluding remedial and future medical benefits; the employer/carrier also agreed to pay claimant’s attorney a $750 fee. On August 24, that stipulation was inadvertently approved by the deputy without a hearing on the Division’s motion for costs, contrary to the order of this court.

Hearing on the Division’s motion to tax costs was held on September 29, 1982. On March 30,1983, the deputy entered an order denying the Division’s motion to tax costs, based upon his finding that the employer/carrier would have prevailed on appeal (had there been no settlement with claimant) and that the employer/carrier were therefore not liable to the Workers’ Compensation Administrative Trust Fund for the costs advanced to the claimant.

A deputy cannot base his determination regarding taxation of costs in a settlement situation on his independent assessment of which party “would have prevailed” had the settlement not taken place. This cause is before us because the parties negotiated a settlement without including in those negotiations a determination of how the Division would be reimbursed for the costs advanced to the claimant. The burden of complying with this court’s mandate to include the Division in the settlement negotiations is one which the employer/carrier have not met. We therefore reverse the deputy’s order and remand the cause to the deputy for an order directing the employer/carrier to reimburse the Division of Workers’ Compensation Administrative Trust Fund for the costs of preparation of the record on appeal.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.

      . This court, unaware of the parties’ failure to comply with its order, thereafter dismissed the claimant’s pending appeal on the grounds of the settlement.

      . The deputy appears to have adopted the employer/carrier’s assertion that the outcome of claimant’s appeal was not the consideration for the settlement, but that settlement was prompted “out of concern for liability for compensation that might arise from future eruptions of her dermatitis.”