author: COWART, Judge.

text:
    In re The Interest of J.S., a child. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Johneva SIMS, Appellee.
    No. 83-156.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 1984.

      Douglas E. Whitney, Orlando, for appellant.
    No appearance for appellee.
   COWART, Judge.

The juvenile judge adjudicated a child, J.S., dependent and placed it in the custody of its mother under the protective supervision of the Department of Health and Rehabilitative Services (HRS) with the understanding or expectation that HRS would institute proceedings under section 409.-2561(4), Florida Statutes (1981), to legally establish the duty of support of the child’s putative father and to seek reimbursement from him of public funds paid to the mother for support of the child under section 409.255.

At a later review hearing the juvenile judge, learning that HRS did not intend to seek reimbursement from the putative father, ordered the mother, as court appointed custodian of the child, to institute a paternity action against the putative father to establish his duty of support and ordered the child support enforcement unit of HRS to assist the mother as provided under section 409.2567, Florida Statutes (1981).

HRS appeals the order arguing that the juvenile judge, as a member of the judicial branch of state government, violated the separation of powers clause of the constitution of the State of Florida (Fla. Const, art. II, § 3) by ordering HRS, an executive agency, to exercise a power appertaining to the executive of the state government, being the discretionary statutory right under section 409.2561(4), Florida Statutes, to seek reimbursement from a person primarily responsible for the child support for which public assistance is being paid.

In Florida the circuit judge acting as juvenile judge has succeeded to all of that exceptional common law jurisdiction of courts of chancery to act on the court’s own volition to protect the interests of infants. In addition section 39.40(2), Florida Statutes, explicitly recognizes the continuing jurisdiction of the juvenile court over a child adjudicated to be dependent. The proper exercise of this unusual jurisdiction recognized by the common law and by statute imposes a duty to affirmatively act in the interest of a child in a manner which is abnormal to the usual judicial function of acting only on matters presented by pleadings filed by the parties. Such duties and obligations include protection of the interests and best welfare of the minor children adjudicated by the court to be dependent.

HRS is the state executive agency most concerned with the welfare of dependent children and has the staff, facilities and funds normally needed for effective governmental action with respect to insolvable problems involved in cases involving dependent children. As to the interests of children the duties and concerns of the juvenile judge and HRS substantially overlap and in the best interest of the public and dependent children the judiciary and HRS must cooperate to effectuate the legitimate functions of each. As a practical matter in pursuance of its legitimate duties HRS often needs and seeks the cooperation of juvenile judges in ways outside of the usual judicial function and it is not legally impermissible for the juvenile judge to seek and expect the cooperation and assistance of HRS. Recently this court and the First District Court of Appeal have held that the duties imposed on a juvenile judge authorize it to direct HRS to institute court proceedings deemed to be in the best interest of a dependent child. See In Interest of J.R.T., 427 So.2d 251 (Fla. 5th DCA 1983); Department of HRS v. Hollis, 439 So.2d 947 (Fla. 1st DCA 1983).

In -this case the juvenile judge was well within the exercise of its jurisdiction to direct the custodian it had appointed to act in a specific manner deemed by the court to be in the best interest of the dependent child. Section 409.2567, Florida Statutes (1981), provides:

All child support collection and paternity determination services provided by the department shall be made available to any individual not otherwise eligible for such services, upon proper application filed with the department. The department shall recover to the extent possible any costs incurred in the collection of child support under this section.

Upon proper application filed with HRS, this statute does appear to explicitly impose mandatory duties on HRS to assist individuals, such as the court appointed custodian of an illegitimate child, as to paternity determination and child support collection in instances other than those where HRS is exercising its discretion under section 409.2561 to seek reimbursement for public assistance paid under section 409.255 to aid families with dependent children. Whether the statutory duty provided by section 409.2567 can be enforced by judicial proceeding, such as mandamus, by an individual entitled to its benefits is not presented by this appeal. Nor has the juvenile judge in this case taken any action against HRS to enforce its order directing assistance. Considering its substance and legal effect, rather than its form, the order in this case can only be a request by the judge to HRS for it to assist the custodian of the dependent child as to matters concerning which HRS has a statutory duty to act. However, the juvenile court did not have authority to summarily order HRS to render assistance under section 409.2567 in such a manner as to be able to enforce a violation of that order as a contempt of court. Therefore we treat this appeal as a petition for certiorari and grant the petition. The offending direction to HRS is

QUASHED.

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

      . See Fla.R.App.P. 9.040(c).


source: Caselaw Access Project

author: ORFINGER, Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant/Cross-Appellee, v. William SOTO, Appellee/Cross-Appellant.
    No. 83-1543.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen.,
    Daytona Beach, for appellant/cross-appel-lee.
    Luis F. Gomez, Orlando, for appel-lee/ cross-appellant.
   ON MOTION TO DISMISS CROSS-APPEAL

ORFINGER, Chief Judge.

The State appeals an order dismissing the information on the ground that it was not properly signed by an authorized person. The defendant cross-appeals that portion of the same order which refused to dismiss the information on the ground that it failed to properly charge an essential element of the crime. The State moves to dismiss the cross-appeal.

An order denying a motion to dismiss an information is not one of the orders which a defendant in a criminal case may appeal. See Fla.R.App.P. 9.140(b). Since that portion of the order complained about by defendant is not appealable on a direct appeal taken by a defendant, it is not appealable by cross-appeal in an appellate proceeding initiated by the State. See State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980); rev. denied, 392 So.2d 1372 (Fla.1980). Defendant has an adequate remedy by an appeal from a final judgment, should one be entered against him.

The cross-appeal is DISMISSED.

DAUKSCH and COBB, JJ., concur.


author: COBB, Judge.

text:
    ORANGE FEDERAL SAVINGS & LOAN ASSOCIATION, a corporation existing under the laws of the United States of America, Appellant, v. Raymond David DYKES, a/k/a Raymond D. Dykes, and Dorothy Dykes, his wife; Betty E. Henderson; Exchange National Bank of Lake County; and Kurfiss Properties, Inc., d/b/a Kurfiss Funeral Home, Appellees.
    No. 82-1032.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 1984.
    Ralph V. Hadley, III, and Jeffrey S. Goldman, of Rice, Hadley, O’Dell & Goldman, P.A., Orlando, for appellant.
    No appearance for appellees.
   ON MOTION FOR LEAVE TO FILE MOTION FOR REHEARING AND/OR CLARIFICATION

COBB, Judge.

The appellant, Orange Federal Savings & Loan Association, has filed a motion pursuant to Florida Rule of Appellate Procedure 9.300(a), seeking leave to file a belated motion for rehearing and/or clarification. The basis for the motion is the representation by the movant that it has been informed that the United States Supreme Court erred in its de la Cuesta opinion in regard to its designation of the effective date of a 1976 regulation promulgated by the Federal Home Loan Bank Board. That date was critical to the result of our opinion in this case.

In our opinion in Orange Federal Savings & Loan Assn. v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983), we relied, as did the appellant, on the references in the slip opinion of the de la Cuesta 102 S.Ct. at 3019, 3031 (fn. 24), designating July 31, 1976, as the effective date of the due-on-sale clause regulatory amendment now codified as 12 C.F.R. § 545.8-3(f). It now appears that, prior to publication in the United States Reports, these references were deleted when it was called to the attention of Justice Blackmun by counsel for the Federal Home Bank Board that while the provisions of section (g) of the new regulation became effective on July 31, 1976, those of section (f) became effective on June 8, 1976. This minor disparity had no bearing on the outcome of the de la Cuesta opinion, but it would have been determinative in our case and would have mandated a contrary result. We dealt with a mortgage executed on July 30, 1976.

But there is no relief available to the movant in this Court at this time. Our opinion was filed on June 23, 1983, and the mandate issued on July 11, 1983, during the January, 1983 term of this Court. See § 35.10, Fla.Stat. (1981). The July, 1983 term began on July 12, 1983 and we are now in the January, 1984 term. We have no jurisdiction over the cause at this time. See State Farm Mutual Automobile Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla. 5th DCA 1981). As the Florida Supreme Court said in that case: “All things must have an end.” This case has ended. The motion is denied for lack of subject matter jurisdiction.

DAUKSCH and SHARP, JJ., concur.

      . Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).


author: PER CURIAM.

text:
    Bryon Curtis DOSTER, Appellant, v. Louis MIMS, Sheriff of Polk County, Florida, Appellee.
    No. 83-472.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Bryon Curtis Doster appeals from the circuit court’s denial of his petition for writ of habeas corpus. The issue presented is whether a demand for the extradition of Doster was sufficient to support the rendition warrant issued by the Governor of Florida.

The requisition demand from the state of Arizona stated: “it having been represented and satisfactorily shown to me that [Doster] was present in this State at the time of the commission of [the alleged offenses] and thereafter fled from the justice of this state.... ” There is no doubt that this request was sufficient to meet the requirements of law as provided for in section 941.03, Florida Statutes (1981). The argument offered by the public defender’s office in an Anders brief does not convince us otherwise.

AFFIRMED.

GRIMES, A.C.J., and RYDER and SCHOONOVER, JJ., concur.

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


author: OTT, Chief Judge.

text:
    Johnny MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1194.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Johnny Murray pled guilty to robbery with a deadly weapon. He was sentenced to ninety-nine years imprisonment, and the trial court retained jurisdiction over one-half of the sentence.

In this appeal, defendant challenges the trial court’s retention of jurisdiction on three grounds: (1) that the trial court erred in retaining jurisdiction over one-half of the sentence where he was not given notice of that possibility prior to acceptance of the guilty plea, (2) that section 947.16, Florida Statutes (Supp.1982), permitting retention of jurisdiction over one-half of a defendant’s sentence, is unconstitutional on its face and as applied to him, and (3) that the trial court’s stated justifications were insufficient to warrant the retention of jurisdiction.

In Springfield v. State, 443 So.2d 484 (Fla. 2d DCA 1984), this court held that section 947.16, Florida Statutes (Supp. 1982), is not an unconstitutional ex post facto law on its face. The remaining points are raised for the first time on appeal and are therefore not reviewable by this court. Springfield; see also Everett v. State, 442 So.2d 407 (Fla. 2d DCA 1983).

Defendant’s conviction and sentence are AFFIRMED without prejudice to his ability to file a motion for relief under Florida Rule of Criminal Procedure 3.850.

BOARDMAN and LEHAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Elgertha WHITFIELD, Appellee.
    No. 83-1561.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellee.
   OTT, Chief Judge.

Elgertha Whitfield was charged with grand theft. The trial court granted her pretrial motion to suppress certain incriminating statements on the ground that she was not given Miranda warnings. The state appeals, and we reverse.

On January 19, 1983, a man and a woman allegedly stole a sport coat from a Hubert Rutland Department Store. An alert store employee pursued the couple and recorded the auto tag number of the escape vehicle. Detective Robert Stinson of the St. Petersburg Police Department traced the auto tag number, determining that the record owner of the vehicle was Eugene Mullins. Detective Stinson went to his residence several days after the incident occurred at Rutland’s. Defendant answered the door. Stinson identified himself as a police officer; defendant identified herself as the girl friend of Mullins; Stinson was invited into the residence by defendant. Detective Stinson advised defendant of the incident and inquired as to the whereabouts of Mullins and who had use of the Camaro on that date. At that time, defendant informed the detective that she drove the Camaro to Rutland’s on the day in question and was followed from the store to her car by an unknown man who inquired about a coat that was inside the vehicle. Detective Stinson stated that he did not suspect that defendant was involved with the theft until after she made the above-described statements. He indicated that defendant was not advised of her Miranda rights, that he was at the residence for approximately twenty minutes, that another man was in the home at that time, and that defendant did not seem upset or frightened. As far as he was concerned, defendant was free to leave before or after she made the statements. Detective Stinson left, and defendant was arrested at a later date.

Defendant recalled answering the door and greeting Detective Stinson. The detective asked her who drove the Camaro located in the driveway. Defendant indicated that she and Mullins drove the vehicle. Detective Stinson asked her numerous questions about who drove the Camaro and whether she had ever been to Rutland’s. She felt that she had to talk to the detective. Defendant stated that she is always frightened when speaking with police officers.

Based on the fact that defendant was not advised of her Miranda rights, the trial court granted her motion to suppress the incriminating statements.

The state relies upon Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), for reversal. We agree. Defendant, who was not taken into custody or deprived of her freedom of action in any significant way, was not subjected to custodial interrogation by Detective Stinson. In the absence of such “custodial interrogation,” there is no requirement to give the Miranda warnings. See State v. Clark, 384 So.2d 687, 691 (Fla. 4th DCA), pet. for review denied, 392 So.2d 1372 (Fla.1980). Accordingly, we hold that the trial court erred in granting defendant’s trial motion to suppress the incriminating statements.

REVERSED and REMANDED for further proceedings.

BOARDMAN and LEHAN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In determining whether a defendant is "in custody," four factors are considered: (1) probable cause to arrest; (2) subjective intent of the police; (3) subjective belief of the defendant; and (4) focus of the investigation. B.L. v. State, 425 So.2d 1178, 1179 (Fla. 3d DCA 1983); United States v. Lueck, 678 F.2d 895, 900 (11th Cir.1982).


text:
    Paul Andrew LANGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1784.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This appeal is from the denial of a motion seeking postconviction .relief under Florida Rule of Criminal Procedure 3.850. An evidentiary hearing was held, and the trial court heard testimony and argument in support of appellant’s allegation concerning “newly discovered evidence.” We affirm the denial of appellant’s motion.

A claim of newly discovered evidence cannot be raised in a rule 3.850 motion. We treat this appeal as a request for permission to petition the trial court for writ of error coram nobis. See Hallman v. State, 343 So.2d 912 (Fla. 2d DCA 1977), aff'd, 371 So.2d 482 (Fla.1979).

Having considered appellant’s request, we find that it is legally insufficient. The alleged facts are not “of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment.” Hallman, 371 So.2d at 485 (citations omitted) (emphasis in original).

AFFIRMED.

OTT, C.J., and CAMPBELL and LEHAN, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Gail JOHNSON, Appellant, v. George MILLER, Appellee.
    No. 83-1822.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Geraldine H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal of a modification of an ongoing child support obligation and a pri- or child support obligation.

In 1981, a judgment of paternity was entered against appellee, George Miller, and appellee was ordered to pay child support. A public assistance obligation and an arrearage for child support payments were determined in 1983. Subsequently, a petition for a rule to show cause why appellant was not in contempt for being in arrears was filed.

At the hearing on the petition to show cause, appellee verbally requested a modification of his child support obligation. The trial court found that appellee was not in willful contempt of court and ordered ap-pellee to pay $10 a week towards the ar-rearage and granted appellee’s request to reduce his regular child support payments. This appeal followed.

The lower court’s finding that appellee was not in contempt cannot be characterized as an abuse of discretion. However, we reverse the modification of the ongoing child support on the authority of Parmer v. Parmer, 431 So.2d 257 (Fla. 2d DCA 1983). Appellee did not file a petition for modification; the court may not modify a prior order of child support absent a pleading for modification. Parmer at 258.

For this reason, we reverse the modification of the child support, without prejudice, to a petition for modification of child support.

OTT, C.J., and CAMPBELL and LEHAN, JJ., concur.


text:
    Robert E. MOON, Appellant, v. Ronald A. HADLEY, Appellee.
    No. 83-2047.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    William S. Jonassen, Indian Rocks Beach, for appellant.
    Stuart M. Rosenblum, Clearwater, for appellee.
   PER CURIAM.

Robert E. Moon has filed an interlocutory appeal from the trial court’s order denying his motion to vacate a default.

The trial court’s decision must stand unless Moon has shown excusable neglect and a meritorious defense. As Moon has failed to show an abuse of discretion by the trial court, the order denying the motion is affirmed. L.B.T. Corp. v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); Abel, Tony & Aldo Creative Group, Inc. v. Friday Night Investors, Inc., 419 So.2d 1135 (Fla. 3d DCA 1982); Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976); Benedict v. W.T. Hadlow Co., 52 Fla. 188, 42 So. 239 (1906).

AFFIRMED.

GRIMES, A.C.J., and RYDER SCHOONOVER, JJ., concur. and


author: JOANOS, Judge.

text:
    PATRICK’S FINE FOLIAGE and Esis Service Company, Inc., Appellants, v. ANICASIO MORALES-CRESPO, Appellee.
    No. AT-84.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.

      H. George Kagan of Miller, Hodges & Kagan, Deerfield Beach, for appellants.
    Guy A. Gladson, Jr., Miami, for appellee.
   JOANOS, Judge.

In this workers’ compensation appeal the employer and carrier contend the deputy commissioner erred in awarding wage loss benefits; attorney’s fees based on a finding of bad faith; and in making a prospective finding with respect to future entitlement to attorney’s fees. We affirm the order, but strike the improper language dealing with future entitlement to attorney’s fees, see B.P. Construction, Inc. v. Garcia, 440 So.2d 76 (Fla. 1st DCA 1983); Santa Rosa Marble, Inc. v. Ubieta, 436 So.2d 311 (Fla. 1st DCA 1983); and City of Leesburg v. Padgett, 397 So.2d 732 (Fla. 1st DCA 1981). In all other respects the order is AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


author: MILLS, Judge.

text:
    Coleman L. McCALLUM, Appellant, v. STATE of Florida, Appellee.
    No. AT-222.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.
    Coleman L. McCallum, pro se.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reviewing the record and considering the issues raised in McCallum’s pro se brief, we find no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE, P., Jr., (Ret.), Associate Judge, concur.


text:
    David GRAVAS d/b/a Land O’Lots Realty, Appellant, v. The MACKLE COMPANY, INC., a Florida corporation; Farrand Corporation; and Francisco Zayas, Appellees.
    No. 83-92.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Shutts & Bowen and Phillip G. New-comm and Karen H. Curtis, Miami, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Sams, Gerstein, Ward, Newman & Beck-ham and Frank Newman, Miami, for appel-lees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

On examination of the record, we find that the movant failed to demonstrate conclusively an absence of genuine issues of fact as to any material issue; summary judgment was therefore inappropriate. See Hopkins v. Gibson Furniture, Inc., 312 So.2d 499 (Fla. 2d DCA 1975). Genuine issues of fact may arise even on undisputed facts where different inferences may reasonably be drawn therefrom. Dawson v. Scheben, 351 So.2d 367 (Fla. 4th DCA 1977); Benson v. Atwood, 177 So.2d 380 (Fla. 1st DCA 1965).

Reversed and remanded.


text:
    Lois ROLLINS, Appellant, v. Earl PHILLIPS, Appellee.
    No. 83-195.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    H.T. Smith, Miami, for appellant.
    John R. Sutton and Roxanne H. Lancella, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant seeks review of a final judgment entered against her on her counterclaim against appellee in which she sought to set aside a warranty deed to her home given by her to the appellee, on the grounds of fraud and lack of consideration.

The trial court ruled that appellant’s counterclaim was without merit and not based upon competent and substantial evidence. We agree and affirm.

We have carefully considered all points on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been shown. All of the points raised by the appellant are dependent upon issues of fact resolved adversely to her by the trial judge.

It is a well settled rule that where evidence is heard by the trier of fact and the witnesses are before him, his findings based upon conflicting evidence should not be disturbed by an appellate court, if the record contains substantial competent evidence to sustain the judgment. Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983); Golden v. Golden, 434 So.2d 978 (Fla. 3d DCA 1983); Mann v. Price, 434 So.2d 943 (Fla. 2d DCA 1983); S. Kornreich & Sons, Inc. v. Titan Agencies, Inc., 423 So.2d 940 (Fla. 3d DCA 1982).

Although we find much of the evidence in this case to be conflicting, it is our view that the record contains ample evidence to sustain the judgment appealed.

Affirmed.


author: BASKIN, Judge.

text:
    Marion POPE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-692.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

A defendant may not be found guilty of a violation of probation for failure to pay costs of supervision unless the state demonstrates his financial ability to pay. Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983); Lattimore v. State, 433 So.2d 56 (Fla. 3d DCA 1983); Smith v. State, 373 So.2d 76 (Fla. 3d DCA 1979). The unrebut-ted testimony before the court established that defendant Pope had never been employed and had no apparent ability to pay. We vacate the finding of violation of probation for failure to pay costs of supervision.

Affirmed as modified.


text:
    Frank ARENA and Ruth Arena, his wife, Appellants, v. UNITED ARTISTS THEATRE CIRCUIT, INC., d/b/a Movies at the Falls, Ambassador Insurance Company and Mission Insurance Company, Appellees.
    No. 83-899.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Horton, Perse & Ginsberg, and Edward Perse, Lawrence Rodgers, Miami, for appellants.
    Lanza, Sevier, Womack & O’Connor and Andrew Sapiro, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Johnson v. Gulf Life Insurance Company, 429 So.2d 744 (Fla. 3d DCA 1983); Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla. 4th DCA 1972).


text:
    NATIONWIDE CARPET AND DRAPERY COMPANY, INC., a Florida corporation, Appellant, v. Hezekiah McMILLIAN and Betty Jane McMillian, his wife, and Elliot I. Miller, Appellees.
    No. 83-2236.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Kenneth N. Rekant, Miami Beach, for appellant.
    Judith A. Frankel, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The trial court correctly recognized that it was without jurisdiction to reinstate appellant’s action after the appellant had terminated its action against appellees by announcing a voluntary dismissal. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983); Carolina Casualty Company v. General Truck Equipment and Trailer Sales, Inc., 407 So.2d 1095 (Fla. 1st DCA 1982); Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla. 4th DCA 1979); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970).

Affirmed.


author: SCHWARTZ, Chief Judge.

text:
    James E. VANCE, M.D. and Raymond & Vance, P.A., Appellants, v. David MINTON, as Personal Representative of the Estate of Marie V. Minton, Appellee.
    No. 83-2295.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.

      Stephen, Lynn, Chernay, Klein & Zucker-man and Robert Klein, Miami, for appellants.
    Rossman & Baumberger and Robert D. Peltz, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The issue in this case is whether an action in which venue is initially properly laid against co-defendants who are respectively residents of the forum and another county must be transferred when the local defendant is voluntarily dismissed after settlement. We agree with the trial court’s conclusion that the remaining defendant is not then entitled as of right to a change of venue to the county of his residence.

The case began when Marie Minton died in Palm Beach County as an alleged result of the medical malpractice of both Dr. Bo-ruchow, a resident of Dade County, and one of the present appellants, Dr. Vance, a resident of Palm Beach County. Mrs. Min-ton’s estate filed a wrongful death action against both physicians and Dr. Vance’s professional association in Dade County pursuant to Section 47.021, Florida Statutes (1981), which provides:

Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.

After two years of litigation, including extensive discovery proceedings, and during the period in which the case was set for trial, the plaintiff settled with Dr. Boru-chow for his $100,000 liability insurance limits and voluntarily dismissed him from the lawsuit. Immediately thereafter, Dr. Vance and his P.A., the only remaining defendants, moved to transfer the case to Palm Beach County, contending that Section 47.021 no longer applied and that they were entitled to that relief under Section 47.011, Florida Statutes (1981), which did. That section states:

47.011 Where actions may be begun Actions shall be brought only in the county where the defendant resides, where the cause of action accrued,[] or where the property in litigation is located. This section shall not apply to actions against nonresidents.

The trial judge denied the motion and this appeal under Fla.R.App.P. 9.130(a)(3)(A) followed.

We affirm upon the holding that if — as was obviously and concededly the ease here — a local or resident defendant is made a party in good faith at the outset of the litigation, his subsequent voluntary (or involuntary) dismissal does not affect the propriety of the initial venue so as to require that the action be transferred to the defendant’s home county. We reach this determination for a variety of reasons. First, while there is far from a unanimity of opinion on the question, see 77 Am. Jur.2d Venue §§ 33-34 (1975); 92 C.J.S. Venue § 96b. (1955) the apparent majority and, we believe, the better reasoned of the cases which have passed upon it under statutes similar to Florida’s have adopted this rule. It was summarized as follows in the factually identical case of New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 146 So.2d 882, 885 (1962):

Where an action is properly brought in a county in which one of the defendants resides, it may be retained notwithstanding there is a dismissal of the resident defendant, provided the following exists — the action was begun in good faith in the bona fide belief that plaintiff had a cause of action against the resident defendant; the joinder of the local defendant was not fraudulent or frivolous, with the intention of depriving the non-resident defendant of his right to be sued in his own county; and there was a reasonable claim of liability asserted against the resident defendant.

Accord, Daugherty v. Kaplan, 131 Cal.App.2d 567, 281 P.2d 43 (1955); Boucher v. Steffes, 160 Mont. 482, 503 P.2d 659 (1972); Rakestraw v. Norris, 478 S.W.2d 409 (Mo. App.1972); Shaw v. Stiles, 13 N.C.App. 173, 185 S.E.2d 268 (1971); contra, e.g., Campbell v. Southern Bell Tel. & Tel., 161 Ga.App. 62, 288 S.E.2d 919 (1982); Van-over v. Stonewall Casualty Co., 289 S.E.2d 505 (W.Va.1982); see generally, Annot., Venue Depending on Joinder, 93 A.L.R. 949 (1934).

The only prior Florida case which considers a similar situation is strongly in accord with the present result. In Iseminger v. Morris, 249 So.2d 488 (Fla. 1st DCA 1971), the court rejected a claim, identical to the one asserted here, that, after settlement of a Volusia County action with the only Volusia County defendants, the remaining Flagler County co-defendants, the sheriff and a deputy, were entitled to a transfer to Flagler County. While the opinion is based in part on the possibility that the plaintiff could not receive a fair trial in Flagler County and that Section 47.101 Fla.Stat. (1981) was therefore implicated, it was stated, in language fully reflective of the view we adopt here:

It does give us some concern that a plaintiff may include enough defendants to justify the laying of venue in the County which the plaintiff thinks would be more susceptible to his cause of action, and thereafter, after having fixed venue, dismissing such defendants. In this case, there is no charge that the plaintiff was guilty of any wrongdoing naming the defendants who were bona fide residents of Volusia County and were dismissed upon accord and satisfaction. [e.s.]

249 So.2d at 489.

It is of preeminent significance that the statutory language itself, the proper interpretation of which is the key to the resolution of the instant problem, specifically refers to the venue privilege as attaching only when the action is “begun,” as stated in the title of Sec. 47.011, or “brought,” Secs. 47.011, 47.021, expressions universally regarded as equivalent to “commenced.” 5 Words and Phrases, “Begun” (1968); 5A Words and Phrases, “Brought” (1968); Turkett v. United States, 76 F.Supp. 769, 770 (N.D.N.Y.1948); see Shaw v. Stiles, supra. Furthermore, in contrast to the statutory scheme in other states, there is no provision for a subsequent, post-commencement determination of the venue issue and a consequent transfer or dismissal when there is a change in the parties defendant. Cf., e.g., Shomide v. Brewerton, 306 Ill. 365, 137 N.E. 881 (1922); see and compare also 28 U.S.C.A. § 1446 (1977) (permitting removal to federal court after it appears that action “has become removable” through dismissal of non-diverse party). ,

Finally, in rejecting the appellants’ contentions, we are not uninfluenced by the utter and unjustified chaos which would ensue were that position carried to its logical and necessary conclusion. If the venue privilege is altered whenever the resident party is eliminated from the action, it follows that it must be transferred or dismissed even, as some courts have actually held, in the midst of trial if a verdict is directed for that defendant, or after it is over, if the jury finds in his favor. E.g., Nelson v. Sandell, 202 Iowa 109, 209 N.W. 440 (1926); University of Louisville v. Metcalfe, 216 Ky. 339, 287 S.W. 946 (1926). We decline to countenance such a result, particularly when, on the other hand, the appellants’ announced concern over the potential for the abuse of the joinder privilege is met by enforcing the “good faith” condition. Compare New Biloxi Hospital, Inc. v. Frazier, supra, (denying change of venue because resident defendant sued in good faith) and Daugherty v. Kaplan, supra, (same) with Jefferson v. Magee, 205 So.2d 281 (Miss.1967) (changing venue because resident defendant not joined in good faith) and Gottesfeld v. Richmaid Ice Cream Co., 115 Cal.App.2d 854, 252 P.2d 973 (1953) (same). In addition, any complaint that an action proceeding solely against a non-resident defendant is unduly burdensome may be obviated by a motion under the forum non conveniens statute, Sec. 47.122, Fla.Stat. (1981).

Affirmed.

      . Since the P.A. has its only office in Palm Beach County, its presence does not affect the issue involved here. Sec. 47.051, Fla.Stat. (1981).

      . Dr. Vance did not invoke Sec. 47.122 Fla.Stat. (1981) under which actions may be transferred "for the convenience of the parties or witnesses or in the interest of justice.” See note 5, infra.

      . Under our view of the case, we need not consider the plaintiffs claim that the cause of action against Dr. Vance "accrued” in Dade County. See A-1 Truck Service, Inc. v. Kivenas, 371 So.2d 495 (Fla. 1st DCA 1979); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975).

      . The Iseminger case is described, perhaps too broadly, in Massey, Civil Procedure, 28 U.Miami L.Rev. 257, 271 (1974) as holding that: if venue is properly laid in the county where one of multiple defendants resides, the subsequent dismissal of that defendant does not alone require a transfer, [footnote omitted]

      . While such a motion may be made at any time, it is also true that as in this instance, see note 3, supra, the further the case proceeds in the original forum, the less the likelihood that the court should exercise its discretion under the statute to transfer the case and necessarily begin again. See, Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.1981), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1981); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980).


text:
    Ruth A. ZANDERS, Appellant, v. Yvonne C. BROWN, Appellee.
    No. 83-2882.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Elliot L. Miller, Miami Beach, for appellant.
    No appearance for- appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Because the record in this partition action involving a single family residence does not support the extraordinary relief that has been granted, we reverse the trial court’s order appointing a receiver. See Electro Mechanical Products, Inc. v. Bor-ona, 324 So.2d 638 (Fla. 3d DCA 1976).

Reversed.


text:
    Misael HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-2075.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was indicted for first degree murder. Pursuant to a negotiated agreement, he pleaded guilty to second degree murder and was sentenced to fifteen years in prison with a mandatory three year minimum. Thereafter, appellant filed a motion for post conviction relief in which he attacked the voluntariness of his guilty plea. After an evidentiary hearing the trial court denied the motion and appellant perfected this appeal.

Appellant is a native of Mexico with virtually no education and he does not speak English. Accordingly, the hearing at which the court accepted his guilty plea was conducted through an interpreter. This record contains a tape recording of the plea hearing. In addition, testimony was adduced at the hearing on the post-conviction relief motion from an expert on Spanish interpretation. This expert listened to the tapes and testified that the interpreter at the plea hearing in many instances did not interpret the questions the judge asked; she simply told appellant he should plead guilty. Without delineating this entire colloquy among judge, interpreter, and appellant at the plea hearing, suffice to say that we are convinced that no one could determine appellant’s plea was voluntarily made from that hearing. See Monte v. State, 443 So.2d 339 (Fla. 2d DCA 1983). If anything, the indications would lead to a contrary conclusion. We are most reluctant to reverse the veteran trial judge in a matter of this nature. However, we feel compelled to do so here in the interests of justice.

Accordingly, we reverse the order appealed from and remand the cause to the trial court with directions to allow appellant to withdraw his plea of guilty if he be so advised and provide him a trial by jury.

REVERSED 'AND REMANDED, with directions.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Lazaro GONZALES, Appellant, v. STATE of Florida, Appellee.
    No. 82-2383.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Channing E. Brackey of Brackey, Finkel-stein & Dallas, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Murray, 443 So.2d 955 (Fla.1984).

ANSTEAD, C.J., and LETTS and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    Nigel WINFIELD, International Airmotive Corporation d/b/a Commercial Air Transport Sales, and Jet Trader Investment Corporation, Appellants, v. Barnett LAZARUS, Appellee.
    No. 83-62.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Karen Coolman Amlong of Holmes & Amlong, P.A., Fort Lauderdale, for appellants.
    Ronald Fitzgerald of Fitzgerald, Taylor Zwicky, Fort Lauderdale, for appellee. &
   BERANEK, Judge.

This interlocutory appeal arises out of a breach of contract case. The case was filed in 1979, and the court eventually entered a summary judgment for plaintiff on liability in December, 1982. Defendant appeals urging that issues of fact were present in the record. Plaintiff argues that it was really not a summary judgment at all — it was, according to plaintiff, a sanction or a default based on defendant’s misconduct. The total noncompliance with the Rules of Civil Procedure evidenced in this matter requires that we reverse.

The case was set and reset for trial and continued at the defendant’s request. Eventually, attorney for defendant withdrew, and at that point, defendant was advised of a definite trial date and ordered to secure new counsel. When the trial date arrived, defendant did not show up. Instead of entering a default, or simply proceeding with the plaintiff’s case, the judge told plaintiff’s counsel that the case was “removed from the docket and the matter of damages was to be heard by the court upon motion for summary judgment.” The court did not actually enter a default or any other kind of written order. The plaintiff then filed a motion for summary judgment and supporting affidavits on damages. This motion was set for hearing by plaintiff’s counsel in expectation that no one would show up. Instead, a new defense lawyer appeared at this hearing. He stated on the record that he was totally unfamiliar with the file and was simply there to make an oral request for a continuance of the hearing. If this attorney had reviewed the file, he would have noticed an affidavit filed almost two and one-half years before the summary judgment hearing which would have created a factual issue on the liability question. This affidavit was not called to the trial court’s attention. In response to defendant’s continuance request, plaintiff simply argued that it was entitled to a summary judgment on damages, apparently assuming that it had somehow already won on liability.

The court then entered a plaintiffs summary judgment on liability and continued the “summary judgment hearing on the issue of damages.” On appeal, defendant now portrays the case as a garden variety summary judgment matter, arguing that the two and one-half year old affidavit (which was never mentioned to the trial judge by anyone) created a fact question. Plaintiff simply argues that despite all words to the contrary, the order appealed from is not really a summary judgment. Plaintiff basically agrees that the procedure is erroneous.

Suffice it to say that Rule of Civil Procedure 1.510 governing summary judgments is totally inapplicable in this sort of situation. It is improper to use a summary judgment as a sanction or in lieu of a default. Appellee/plaintiff seeks affirmance on an argument of form over substance asserting it was obvious what the trial court was trying to do even though the wrong procedure was used. We might be tempted to accept this argument but decline to do so because the “summary judgment” aspects of the case are written into the trial court’s order as governing future proceedings on damages. Also, this is an interlocutory appeal. The case is not yet over, and the avenue of sanctions or default is still available to the trial court for the defendant’s past misconduct on appropriate motion.

We thus find error in the entry of the summary judgment on liability and reverse. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Jessie Oliver PATTERSON, Appellee.
    No. 83-787.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Leonard I. Singer, Lake Worth, for ap-pellee.
   HERSEY, Judge.

Affirmed. See Boynton v. State, 64 So.2d 536 (Fla.1953); Carter v. State, 238 So.2d 681 (Fla. 1st DCA 1970); Olson v. State, 287 So.2d 313 (Fla.1973). As we interpret these cases the following language from Carter, 238 So.2d at 683, (quoting a portion of Section 561.07, Florida Statutes) aptly describes the present state of Florida law as we must apply it to the facts before us:

[W]e are of the opinion that the authority of a beverage agent to search the premises of a beverage licensee without a search warrant is restricted to occasions in which the beverage agent is acting in good faith ‘in the enforcement of the beverage law and the cigarette tax law of this state, and in the prosecution of offenders against such laws.’

The cases prohibit a warrantless search where entry is premised upon suspicion of a crime other than those specified in the particular statute which permits the limited-purpose entry.

Such a subjective standard may be somewhat self-defeating but the policy behind the rule is beyond the authority of this court to attempt to plumb and modify.

Accordingly, we affirm.

AFFIRMED.

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


text:
    Joseph Robert ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-836.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment revoking appellant’s probation and the sentence imposed by the trial court. The evidence sufficiently supports the trial court’s finding that appellant violated his probation by committing the crime of possession of burglary tools.

However, we find the evidence insufficient to support the trial court’s finding that appellant committed the crime of burglary. Therefore, we remand this case to the trial court with directions to vacate the burglary violation.

AFFIRMED but remanded with directions.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    Dr. Bernard COHEN and Florence Cohen, his wife, Appellants, v. GENERAL MOTORS CORPORATION, CADILLAC DIVISION, Appellee.
    No. 83-942.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Milton Kelner of Kelner & Kelner, Miami, for appellants.
    R. Benjamine Reid of Kimbrell, Hamann, Jennings, Womach, Carlson & Kniskern, P.A., Miami, for appellee.
   DOWNEY, Judge.

The primary issue here is whether there was a complete absence of justiciable issue of either law or fact raised by appellants so as to warrant the imposition of attorney’s fees under section 57.105, Florida Statutes (1981). The trial court found there was; we disagree and reverse.

Appellant, Dr. Bernard Cohen, playing the role of good Samaritan, attempted to assist Pearl Lowenstein in releasing the automatic parking brake on her Cadillac. Pearl was unable to move her car because the automatic parking brake release failed to work properly. Cohen attempted to assist her by reaching underneath the dash and releasing the automatic brake release lever. The motor was running but Cohen understood the gearshift to be in “park.” When he pulled the release lever, the car shot backward and the left front wheel of the car rolled over Cohen’s leg. Cohen sued the owner and operator of the car and General Motors Corporation — the latter in strict liability, breach of implied warranty and negligence. On the first day of trial, the court granted General Motors’ renewed motion for summary judgment. Cohen appealed the summary judgment and this court affirmed in Cohen v. General Motors Corporation, Cadillac Division, 427 So.2d 389 (Fla. 4th DCA 1983). In a written opinion the court discussed the various theories of liability asserted by appellants and held that General Motors was not liable for Cohen’s injury. Finding no factual issue demonstrated under any of the three theories of liability, the court affirmed the summary judgment. On remand, the trial court awarded General Motors $23,696.00 in attorney fees pursuant to section 57.105.

We are frequently criticized for affirming cases without opinion when we perceive a written opinion to be unnecessary. But this is the first time we have been charged with writing an opinion in a case in which there was a complete absence of a justicia-ble issue unless such absence was the thrust and purpose of the opinion. Be that as it may, while the end result was that the Cohens were unable, even with their expert’s testimony, to prove a claim against General Motors, we hold the suit was not frivolous within the contemplation of the cited statute. It was, therefore, error to assess an attorney’s fee against appellants. That being true, it was also error to hold appellants liable for the cost incurred by General Motors in providing expert testimony on a reasonable attorney’s fee.

Accordingly, the order granting General Motors attorney’s fees and costs of an expert witness on attorney’s fees is reversed.

REVERSED.

ANSTEAD, C.J., and HERSEY, J., concur.


author: GLICKSTEIN, Judge.

text:
    George I. MAY, M.D., individually, and George I. May, M.D., P.A., n/k/a May Orthopaedics, P.A., Appellants, v. Richardo FUNDAMENT and Margarida P. Fundament, his wife, and Richard G. Collins, jointly and severally, Appellees.
    No. 83-955.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Jeffrey S. Altman of Abramowitz & Altman, P.A., Plantation, for appellants.
    Gary S. Genovese of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from an order of the trial court in an action for malicious prosecution filed by the appellant doctor and his P.A. against a former patient, his wife and the patient’s attorney. The order reads:

THIS CAUSE came on to be heard on the Defendants’ Motion to Dismiss Amended Complaint, and after having heard argument of counsel and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss Amended Complaint is granted with prejudice.
IT IS the Court’s decision that since Count I in the previous litigation was filed in negligence only and was not filed maliciously, that Count II cannot proceed.
IT IS THE Court’s ruling that if a multi-counted complaint contains one count that has not been filed maliciously, then a malicious prosecution action cannot lie against that complaint.

Appellees’ two count complaint in the original action against appellants alleged negligence and gross negligence respectively. The acts attributed to the appellant doctor in both counts were essentially identical — negligent surgery and post-operative care. By alleging that the negligent surgical and post-surgical treatment was willful and reckless appellees believed they could also seek punitive damages, which they did. The doctor and his P.A. moved to strike the claim for punitive damages in the original action and the trial court granted their motion “striking the claim for punitive damages.” Trial of the original action upon issues of negligence and compensatory damages ended in an adverse verdict.

The present appeal arose out of a second action between the parties, brought by the doctor and his P.A. immediately after entry of the order which struck the claim for punitive damages in the original action. The order being appealed reached the correct result; and it is the result which counts. As the supreme court has appropriately reminded all of us judges laboring in the intermediate appellate fields:

Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.

Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

The claim for punitive damages in the original action, standing alone, would not constitute a separate count; and a verdict for punitive damages, alone, would not stand. See Carida v. Holy Cross Hospital, Inc., 427 So.2d 803 (Fla. 4th DCA 1983) and cases cited therein. Accordingly, when the trial judge in the original action struck the claim for punitive damages, he was not dismissing a separate count but in essence was eliminating certain paragraphs in what should have been considered as a one count complaint. Were we to absorb into the system a claim based on paragraphs, inevitably we would then allow actions based on stricken clauses, then phrases, then just words and finally only punctuation.

Had there been two separate causes of action brought out of materially different factual origins, it perhaps would be a different ball game. Examples from three states illustrate the latter situation; and the language of the opinions suggests why appellate decisions sometimes appear subjective and are rendered by a divided court. In Swepson v. Davis, 109 Tenn. 99, 70 S.W. 65 (1902), the holding was in favor of the malicious prosecution defendant on the ground he had prevailed in the prior suit on which the malicious prosecution action was predicated. The court did say in the opinion dismissing a petition for rehearing that a defendant who prevailed below can maintain a malicious prosecution action as to one or more counts that were untrue and without probable cause even though there had been probable cause for other counts in the underlying suit. It is not clear whether the Tennessee court was adopting this principle or merely explicating old cases and commentary brought to the court’s attention by the malicious prosecution plaintiff's attorney. The following excerpt from the opinion proper is in conflict with the principle on which appellants here rely:

We know of no authority, and have been cited to none, holding that it is necessary for the plaintiff in his original suit to sustain every allegation or charge made in his bill, or else be liable to a suit for malicious prosecution. If this be the correct doctrine, then in every suit for malicious prosecution there must be a separate investigation and retrial of each separate allegation made in the original suit, without reference to the result of the suit as a whole, and the final decree therein. The only sound and tenable rule in cases of malicious proscution is that adopted by all the courts, and that is to settle the question whether the original suit was successfully prosecuted or not by the decree therein upon the final adjudication, and not by the separate allegations and charges, and the proof for and against each.

Id. 116, 70 S.W. at 69. Swepson v. Davis involved multiple counts arising out of Davis’ alleged tortious misconduct as Swepson’s business partner.

Singleton v. Perry, 45 Cal.2d 489, 289 P.2d 794 (1955), concerned a simultaneous arrest and prosecution of former live-in-girl-friend Eula Mae Singleton on two separate criminal charges initiated by Perry: (1) that she stole his Cadillac, and (2) that she made off with other personal property belonging to him. Ms. Singleton was arrested in Cleveland, Ohio, held in jail there for nearly a month, returned to San Francisco in custody of a matron, and held in jail there for a week. Both charges were dismissed upon preliminary hearing. Her malicious prosecution suit ended in a verdict in her favor on the auto theft action but for Perry on the charge as to other property. Perry’s appeal failed. In support of its affirmance the California court quoted the following from the early Missouri case of Boogher v. Bryant, 86 Mo. 42, 50 (1885):

Indeed, it would seem almost a mockery to hold that, by uniting groundless accusations with those for which probable cause might exist, the defendants could thereby escape liability, because of the injured party’s inability to divide his damages between the two with delicate nicety. Such, we think, is not the law.

289 P.2d at 799-800. Nevertheless it is possible that the opinion in Singleton is colored by the fact of her arrest and detention on criminal charges and her return from a distant place only to have the charges dismissed. Her injuries were surely more blatant than can be discerned in the present case.

In the second California case, Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405 (1956), Raboff sued Albertson seeking a money judgment and either a lien on her real property or a judgment declaring her title was obtained from her husband without consideration and in fraud of creditors. Raboff won the money judgment, which was affirmed on appeal. Judgment on the lien claim was in favor of Albertson and was not appealed. Albertson sued for malicious prosecution, alleging Raboff knew the lien claim was baseless when he asserted it. The trial court entered a judgment of dismissal for failure to state a cause of action. The appellate court based its reversal of the dismissal on the holding in Singleton, supra.

The present case portrays the doctor as negligent, then goes on to deeper cuts— that he was reckless and his acts were willful. Nevertheless, it is still the same furrow being plowed — perhaps akin to A alleging B to be not only a fool but a darn fool as well. Some judges could argue— like the physician’s attorneys — that as to the allegations involved here, there is a difference in kind, not degree, between those allegations which were stricken and those remaining; but we disagree. The order dismissing the malicious prosecution action is affirmed.

HURLEY and DELL, JJ., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    STATE of Florida, Appellant, v. W.R.C., M.B. and F.H., Appellees.
    No. 83-1050.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellees-W.R.C. and F.H.
    Jay S. Spechler of Spechler & Lynch, Hollywood, for appellee-M.B.
   PER CURIAM.

The appellant’s point on appeal is whether the trial court erred in granting appel-lees’ motion to suppress made upon the ground that the police did not have probable cause to stop them. Two points are posed by one of the appellees: 1) this court does not have jurisdiction to consider the appeal, and 2) the order of suppression is correct because the police did not have even a founded suspicion for the stop.

Following our decision in State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), which has been certified to the Supreme Court of Florida and is now pending in that court, we treat this appeal as a petition for writ of certiorari.

On the merits, we hold that the order of suppression is correct because the evidence adduced demonstrates that the police did not have even a founded suspicion for stopping appellees.

Accordingly, the petition for writ of cer-tiorari is denied.

DOWNEY and DELL, JJ., concur.

BERANEK, J., concurs specially.

BERANEK, Judge,

concurring specially.

I would simply treat this matter as a petition for certiorari and deny same without addressing the merits.


text:
    Samuel SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 83-959.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Richard W. Springer of Kohl, Springer, Springer, Mighdoll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984).

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


text:
    Carl WEISSMAN, Appellant, v. CHUBB AND SON, INC., and Peter Keller, Appellees.
    No. 83-1108.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    - Philip J. Gouze of Philip J. Gouze, P.A., Fort Lauderdale, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellant, Carl Weissman, seeks reversal of a final judgment and final order of dismissal entered against him as a sanction due to his counsel’s failure to appear at trial.

It appears that Weissman’s malpractice suit was set for trial on a two week docket beginning February 28, 1983. The case was not reached during the first week but on Tuesday, March 8, the trial judge’s judicial assistant called Weissman’s office and advised counsel’s secretary that the case would proceed to trial on Wednesday morning at 9:30 a.m. Shortly thereafter, the judicial assistant called again and told counsel’s secretary that the case would not be tried on Wednesday and would be continued until July. The following day, Wednesday, Weissman’s lawyer went to Miami on business; he called his office about 3:00 p.m. and learned that the judge’s office had called around 11:00 a.m. to say that the trial was to commence at 2:00 p.m. that day. Upon calling the judge’s office, counsel learned his case had been dismissed! One further fact is relevant: another counsel of record for Weiss-man was notified just before 2:00 p.m. that the trial was to commence at that time. He was not lead counsel in this case and could not attend because he had a scheduled matter about to commence that day. All of the foregoing facts were set forth in a motion to set aside the order of dismissal and supporting affidavits; the motion was denied.

The case law generally supports the proposition that dismissal as a sanction should be imposed only for wilfull disobedience of a court’s order or in other similarly extreme situations. Lifeguard Corp. v. U.S. Home Corp., 429 So.2d 94 (Fla. 2d DCA 1983); Smalley v. Layne, 428 So.2d 298 (Fla. 3d DCA 1983); Johnson v. Landmark Nat. Bank, 415 So.2d 161 (Fla. 4th DCA 1982). Cf. State v. Alfonso, 433 So.2d 1357 (Fla. 4th DCA 1983).

While conceding that the evidence does not demonstrate any wilfullness on the part of appellant’s counsel, appellees suggest that counsel should not have acted upon notification from the judge’s judicial assistant; counsel should have gotten the word from the “horse’s mouth.” We reject any such rigid standard and hold that notification from the judge’s judicial assistant that the case would be continued should suffice as an excuse for nonappearance at the scheduled time; at the least it suffices to preclude a finding of wilfullness. We hold that dismissal under these circumstances was an abuse of discretion.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to reinstate the cause and proceed to trial.

REVERSED AND REMANDED, with directions.

ANSTEAD, C.J., and HERSEY, JJ., concur.

      . In the Seventeenth Judicial Circuit judges’ secretaries are denominated judicial assistants.


author: DELL, Judge.

text:
    Herman SHERER, Gerald Sherer, Myron Sherer, Fay Flicker, Marilyn Seiden and Caron Cornett, Appellants, v. RUBIN MEMORIAL CHAPEL, LTD., a Florida limited partnership, and Murray N. Rubin, Appellees.
    No. 83-1538.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Bradley S. Hartman of Litman, Muchnick & Wasserman, Hollywood, for appellants.
    Michael C. Mattson of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   DELL, Judge.

Appellants challenge an order dismissing their amended complaint with prejudice in a case concerning the mishandling of a corpse.

Appellants, relatives of the deceased Beth Sherer, alleged in their complaint that they entrusted the body of the decedent to appellees’ care to provide all funeral services including preparation of her corpse for an open casket service and burial. They further alleged that when they arrived at the funeral home they found another body dressed in decedent’s burial clothing.

Appellees’ employees allegedly spent one-half hour trying to convince appellants that the body was the decedent. Upon admitting their error, appellees made arrangements to have the decedent’s corpse delivered from storage. Appellees then removed the burial clothing from the wrong corpse and, rather than properly dressing and preparing the decedent’s corpse for the planned open casket service, simply threw the burial clothing over the unprepared corpse leaving numerous ugly bruises on her arms exposed. Appellants filed suit to recover for pain, suffering and mental anguish. On motion to dismiss, appellants’ counsel conceded there was nothing further to allege. Thus the trial court dismissed the amended complaint with prejudice.

Appellants recognize that under present Florida law they cannot recover for pain, suffering and mental anguish absent some impact or physical injury unless they can show willful, wanton or malicious behavior. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). The courts of Florida have recognized the right to recover for mental pain and anguish where malice can be implied or imputed from an entire want of care or great indifference of others. Therefore, the issue is whether the facts in this case are sufficient to imply or impute malice. See Crane v. Loftin, 70 So.2d 574 (Fla.1954).

Appellants rely on Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). In Kirksey, an undertaker took the body of a five year old child, killed by accident, from her home in her mother’s absence. The mother went to the undertaker and demanded the release of the body. The undertaker refused, embalmed the body, and would not release the body until the mother paid an excessive fee. The court stated:

[Wjhere the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages. See 15 AmJur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.

Id. at 189.

In another case involving the mishandling of a corpse, the court did not find the facts sufficient to imply or impute malice. In Estate of Harper v. Orlando Funeral Home, Inc., 366 So.2d 126 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 637 (Fla.1980), a casket provided by the funeral home began falling apart as the pallbearers carried the body to the grave. The complaint sought recovery for damages under several counts. Although the district court found the result reasonably foreseeable because of the inadequate and defective construction of the coffin, the court apparently found that such conduct did not exceed all bounds reasonably tolerated by society such as to imply malice for the entire want of care or great indifference. Thus the court approved the dismissal of the count requesting damages for mental pain and suffering.

In our view, appellants have alleged sufficient ultimate facts to state a cause of action under the rationale of Kirksey v. Jernigan, supra. Accordingly, we reverse the order dismissing appellants’ amended complaint and remand this cause for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


text:
    William J. OTIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-749.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.

      Jerry Hill, Public Defender, and L.S. AI-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

William Otis appeals his conviction for grand theft, a violation of section 812.-014(2)(b), Florida Statutes. Appellant raises several points on appeal, only one of which merits discussion. He contends the trial court erred in accepting his oral waiver of the right to jury trial. We agree.

The record of appellant’s waiver consists of the following colloquy:

THE COURT: It’s set for nonjury.
MR. WESTFIELD: Yes. Your Honor, at this time we will waive trial by jury for the record.
THE COURT: Is that correct, Mr. Otis? You are waiving trial by jury?
THE DEFENDANT: Yes.
THE COURT: You are going to let the Court determine it then?
THE DEFENDANT: Yes, sir.
THE COURT: Set it for nonjury at 1:30 on February 10th.

There is no record of any written waiver signed by appellant. Additionally, the trial judge made no attempt to determine whether appellant understood and therefore intelligently waived his right to jury trial. Clearly, it cannot be said that he effectively waived his right to trial by jury. See Fla. R.Crim.P. 3.260; Cirio v. State, 440 So.2d 650 (Fla. 2d DCA 1983); Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981).

Accordingly, we REVERSE and REMAND for new trial.

OTT, C.J., and BOARDMAN and CAMPBELL, JJ., concur.


text:
    Donald Bruce HINES, Appellant, v. STATE of Florida, Appellee.
    No. 83-2452.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
   PER CURIAM.

Defendant appeals from the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Defendant raises two points in his motion. The second point, alleging ineffective assistance of counsel, has no merit. Knight v. State, 394 So.2d 997 (Fla.1981).

However, in his first point, defendant claims that, prior to accepting defendant’s guilty plea, the trial court failed to personally inform defendant about the nature of the charge against him and the consequences of his guilty plea and about his rights to remain silent and to confront witnesses. Defendant’s allegation, if true, might be contrary to the requirements of Florida Rule of Criminal Procedure 3.172 and might entitle defendant to relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which refute the allegation.

Accordingly, the trial court’s denial of defendant’s motion is reversed and the case is remanded to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified and attach to its order those portions of the record which conclusively show that defendant is not entitled to relief or hold an evidentiary hearing and then rule on the allegations presented in the motion. See Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

OTT, C. J., and CAMPBELL and LEHAN, JJ., concur.


author: LEMMON, Justice. DIXON, Chief Justice

text:
    Alan V. ANDRIES v. GENERAL MOTORS CORPORATION, DELCO BATTERIES DIVISION, et al.
    No. 82-C-1953.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 27, 1984.
    Edward P. Sutherland, Baton Rouge, for applicant.

      Peter L. Bernard, Jr., Joseph S. Palermo, Jr., Bernard, Cassisa, Babst & Saporito, Metairie, for respondents.
   LEMMON, Justice.

This is an action for damages against the manufacturer of an automobile battery. Plaintiffs injuries occurred when the battery exploded in his face as he used a cigarette lighter to explore under the hood in an attempt to help a stranded motorist start her car. The issue is whether the manufacturer should be held liable for failing to warn adequately that introduction of a spark or flame in proximity to the battery creates the risk o,f explosion.

Plaintiff stopped during darkness hours to assist a female motorist whose automobile was stopped in the middle of a four-lane roadway in a residential neighborhood. When the motorist explained that her lights and power had gone off without warning, plaintiff suspected battery trouble and raised the hood. Determining that the battery was located in the front corner on the passenger side, he stood in the front of the vehicle in order to examine the battery without exposing himself to traffic.

Plaintiff removed two or three filler caps from the battery, but was unable, because of insufficient illumination from the street light, to see down into the battery to determine the level of the fluid. Since there was no flashlight available, plaintiff lit a cigarette lighter and inserted it under the hood into the area of the battery. The battery exploded, causing serious injuries to plaintiff.

Plaintiff filed this action, alleging that defendants had designed and manufactured a battery which was not reasonably safe for its intended use and had failed to provide adequate warning about the dangerous propensities of the battery or to display the warning in a proper location. Answering special interrogatories, the jury found that the battery was not “unreasonably dangerous in normal use” and that the manufacturer had provided “an adequate warning of any unreasonable danger from a foreseeable use of the product”. The judgment rendered in accordance with the verdict in favor of defendant was affirmed on appeal. 417 So.2d 479. We granted plaintiffs application for certiorari. 421 So.2d 245.

Plaintiff focuses in this court on the adequacy of the warning, not in terms of the sufficiency of the language of the warning, but in terms of the placement of the warning on the product. Plaintiff argues that the warning must be “located on the product in such a manner that it could be clearly and readily seen, read and understood by the consumer”.

The hazard involved in this case is the natural and unavoidable formation of explosive hydrogen and oxygen gases during the chemical reaction process which produces electrical current within the battery. No battery manufacturer has been able to devise a method of eliminating the hydrogen electrolysis procedure, although this manufacturer has attempted to minimize the hazard by developing a flame arrestor filler cap which permits the gases formed inside the battery to percolate slowly through tiny holes in the cap to the outside, where the escaping gas mixes very quickly into the surrounding air. Thus, when the flame arrestor filler caps are in place, any ignition of escaping gas is not likely to cause a flashback into the greater concentration of gas inside the battery.

Because the hazard cannot be completely eliminated, and because it is reasonably foreseeable that filler caps may be removed or that cracks or other leaks may develop in the battery, this manufacturer placed a warning label on the surface of the battery. The manufacturer also placed a warning of the particular danger in the owner’s manual distributed with each car.

The battery in the present case was disposed of by the repairman after the explosion. The parties stipulated, however, that the battery was original equipment on the car and was a Model Y-86-P Delco battery.

At trial, the manufacturer introduced into evidence an identical battery with an identical warning label. The warning was in red, white and black lettering, with a red and white danger symbol, on the solid black battery case. Below is a photograph of the exhibit, as it would have been viewed from the front of the car:

The owner of the car (coincidentally a battery salesman) verified that the battery introduced into evidence was the same model as his battery, and he and his wife both testified that their battery contained a warning label, although they could not remember the exact location. An engineer employed by defendant testified that the warning labels were placed on every battery and were designed to catch attention with colors contrasting with the black battery case and the raised black letters of the Delco logo. He pointed out the practical problems in achieving maximum visibility at night, noting that a light inside the hood would not function without a working battery and that a flourescent label requires an outside source of light for reflection.

Counsel for plaintiff contends that the warning label was positioned so that it was not visible to a person standing in front of the car, whose view was obstructed by the support structure of the engine compartment. Plaintiff testified that he did not see the warning, but saw only the filler caps and the Deleo logo. He further asserted that he would not have placed the flame near the battery if he had seen the warning. Counsel accordingly argues that the accident would not have happened if defendant had displayed the warning as clearly and prominently as the Delco logo.

Proper placement of a warning label so that it is clearly visible is one factor to be considered in determining the adequacy of the warning in a products liability case. A warning label which is not clearly visible is not an adequate warning.

The jury in the present case had the opportunity to observe the battery during the trial and to see the warning, which was located approximately one inch from the filler caps removed by plaintiff. At the completion of the evidence, the court permitted a demonstration in which the battery that had been introduced into evidence was placed in the vehicle that had been involved in the accident. After inspecting the battery in place, and after listening to the arguments by counsel and instructions by the court, the jury affirmatively answered Interrogatory No. 3, which asked “Did General Motors give an adequate warning of any unreasonable danger from .a foreseeable use of the product?” This answer implicitly includes a finding by the jury that the warning was clearly visible. After reviewing the record, we conclude that the evidence supports the jury’s finding.

Plaintiff contends, however, that the jury’s finding should be disregarded because of the jury's exposure to improper instructions and confusing interrogatories. At trial, counsel for plaintiff, citing Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978), requested the following special instruction:

“It is an established principle in the law of products liability that a manufacturer has a duty to give adequate warning of unreasonable danger involved in the normal use of its product, where the manufacturer knows or should know of such danger.
“The seller (manufacturer) is bound to explain himself clearly respecting the extent of his obligations and any obscure or ambiguous clause is construed against him.” (Emphasis in original text)

The trial court refused the requested special instruction, having already included the following in the court’s instructions, a copy of which was provided to counsel pri- or to trial:

“A manufacturer of a product must give an adequate warning of any danger inherent in any product made by him or in its use which he knows or should know, and which the user of the product would not ordinarily discover. The warning should be such that if followed, it would make the product safe for users. To comply with this duty, the manufacturer must appropriately label the product, giving due consideration to the likelihood of accident and the seriousness of the consequences from failure to label it to warn of any dangers that are inherent in it and its use or that may arise from improper handling or use of the product. However, the duty of a manufacturer to warn goes only to those dangers which are not obvious. A manufacturer is not compelled to warn knowledgeable purchasers of the dangers of which they know or should be aware.”

We conclude that the trial judge’s instruction on adequacy of warning was a complete and correct statement of the law, which included the substance of the requested instruction. Contrary to plaintiff’s assertion, the court’s instruction did not tend to mislead the jury into believing that the mere presence of a warning label fulfilled the manufacturer’s duty. The instruction that “the manufacturer must appropriately ■ label the product” is actually more pertinent to plaintiff’s contentions in this case than the requested language, which was taken verbatim from the Chap-puis decision. In the Chappuis case, the problem was the failure of the manufacturer’s warning label to include the particular hazard, known to the manufacturer, which caused Chappuis’ injury. Here, the language of the warning label was completely adequate to warn against inserting open flames in close proximity to the battery.

Plaintiff finally contends that the trial court erred in revising, over plaintiffs objection, Jury Interrogatory No. 3, quoted above, which the jury answered 9 to 3 in favor of defendant. Plaintiff complains that the descriptive term “clear and adequate”, which was in the originally proposed interrogatory, was necessary to eliminate any confusion over whether the manufacturer’s duty was discharged by merely placing a warning label on the product.

As in the case of the requested instruction, we perceive no such confusion. Indeed, the judge’s instructions clearly pointed out that the duty includes a warning which, if followed, would make the product safe and that the product must be appropriately labeled. Under the court's instruction, plaintiff argued logically to the jury that a warning label which is not visible because of poor positioning is not an adequate warning and that the product was therefore not appropriately labeled. Because plaintiff testified that he did not see the label, the jury could have accepted his version. However, the jury, after viewing the battery in place at the completion of the evidence, rejected this argument, and this determination, as noted above, was supported by the evidence.

Accordingly, the judgment is affirmed.

DIXON, C.J., dissents with reasons.

CALOGERO, J., dissents.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The manufacturer made an economic choice to equip its automobile with a highly explosive and extremely dangerous battery. The danger was known to the manufacturer. People generally have never understood the danger of exploding batteries, unlike the danger of exploding gas tanks. In its newer models, the manufacturer has eliminated the dangerous battery. The calculated risk of injuring other people should not protect the manufacturer from the terribly serious consequences of an explosion.

      . General Motors Corporation manufactured both the battery and the automobile in which the battery was installed as original equipment.

      . The language on the warning label was very similar to that approved as an adequate warning in Hudgens v. Interstate Battery Systems of America, Inc., 393 So.2d 940 (La.App.3rd Cir.1981).

      . Indeed, plaintiff had to reach over the warning in order to remove the caps.

      . In Chappuis, plaintiff was struck in the eye by a chip from a hammer which had already been chipped once before. The manufacturer, who was aware that a chipped hammer is likely to chip again, did not include this danger in the text of the warning label placed on the hammer.


author: LEMMON, Judge,

text:
    STATE of Louisiana v. Lee Ray SINEGAL.
    No. 83-K-2499.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   Granted. Sentence is vacated and case remanded for re-sentencing after a full hearing and affording defendant opportunity to contravene allegations in PSI report, all to be in compliance with C.Cr.P. Art. 894.1.

LEMMON, Judge,

concurs.

It is inappropriate for a probation officer to include in a presentence investigation report an unsupported statement that a police officer “considers Sinegal to be a ‘big man’ in the narcotics trade in Jennings”. It is even more inappropriate for the trial judge, in imposing sentence, to attach any significance whatsoever to such a statement. The sentencing judge should disregard this • and any other conclusory statements that are made without a factual basis.


author: CALOGERO, Justice. WATSON, Justice, LEMMON, Justice,

text:
    STATE of Louisiana v. Lee Ray JACKO.
    No. 82-KA-2195.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
    Preston N. Aucoin, Ville Platte, for defendant-appellant.
   CALOGERO, Justice.

Defendant Lee Ray Jacko was charged by bill of information with forgery, a violation of La.R.S. 14:72. Jacko was tried by jury, convicted, and sentenced to serve seven and one-half years imprisonment. On appeal he argues five assignments of error. We find two related assignments of error (they concern unlawful selection of the general venire and the petit jury panel) meritorious. We therefore reverse defendant’s conviction and remand the case to the district court.

By assignments Number Two and Number Three defendant contends that the trial court erred in denying his motions to quash the general venire and his petit jury panel, each of which “does not pass Constitutional muster.” Specifically, defendant argues that the general venire was not selected impartially as required by La.C.Cr.P. art. 408, that ministers, attorneys and persons over the age of seventy were routinely excluded, and that there was a systematic exclusion of blacks and non-registered voters from the general venire.

The system used in Evangeline Parish for selecting the general venire was described by various parish employees who testified at the hearing on defendant’s motion to quash the venire. The general ve-nire is selected exclusively from voter registration rolls. An employee of the jury commission, Ms. Phyllis Pitre, is stationed at the office of the Registrar of Voters. Her job entails gathering names for the general venire list, which names are drawn from the voter registration list and typed onto jury cards. These jury cards, which contain only the names and addresses of the voters, are given to the Clerk of Court at irregular intervals. When juries are needed the cards are selected from barrels in which they have been placed by the Clerk of Court. Testimony by Ms. Pitre indicates that she routinely avoids selecting for the general venire ministers, attorneys and persons over the age of seventy. Thus, Ms. Pitre, apparently aware of the personal exemptions permitted by Supreme Court Rule XXV takes it upon herself to exclude these certain segments of the population because those persons have the right to choose to be excused. As a result, certain persons qualified to serve on juries are never given an opportunity to serve.

This case is directly governed by our decision in State v. Procell, 332 So.2d 814 (La.1976). In Procell, we were faced with a situation similar to that presented in the instant case, where persons entitled to claim the exemption provided by Supreme Court Rule XXV were automatically excluded from the general venire by the Sabine Parish Jury Commission. In Procell we noted:

The Louisiana Constitution of 1974 states that “Every person charged with a crime ... is entitled to (an) ... impartial trial.” La. Const. art. I, § 16 (1974). This guarantee of an impartial trial continues the predecessor provision in the 1921 Constitution. La. Const. art. VII, § 41 (1921). These general provisions which extend to criminal defendants the right to an impartial trial apply to the selection of the general venire by the jury commission of each parish. C.Cr.P. arts. 408, 409. Although the names of the persons which make up the general venire must be selected impartially, each of those persons may not actually have to serve on a jury because he may be exempt from jury service. State v. Procell, 332 So.2d at 815. (Footnotes omitted.)

Commenting on Supreme Court Rule XXV we stated:

Our rule was passed with the stated purpose of guaranteeing “that all qualified citizens shall have the opportunity to be considered for jury service.” Under the rule certain classes of qualified citizens are granted a personal exemption from jury service. The rule directs no action on the part of the jury commissioners whose preparation of the general venire is directed by Code of Criminal Procedure Articles 408 et seq. Instead, as we held in State v. Gaines, 315 So.2d 298, 300 (La, 1975), the rule “effectively (prohibits) the exclusion from the jury selection process of any qualified segment of our citizenry .... ” State v. Procell, 332 So.2d at 816-817.

Then, in reversing Procell’s conviction we held:

Thus, under the system employed in Sabine Parish, certain persons qualified to serve on juries are never given an opportunity to serve because the jury commissioners exclude their names from the general venire on the basis that they fall under exemption set out by the rule, a rule which allows them, if they choose, to serve notwithstanding the claimable exemption. This exclusion clearly contravenes the letter and spirit of the law. It means that the general venire is not selected impartially, as our constitution and statutes require, and that the general venire was improperly constituted under our Rule XXV, Code of Criminal Procedure Article 403, and Louisiana Constitutional Articles I, § 3 and V, § 33 (1974). State v. Procell, 332 So.2d at 817.

So too, in the instant ease, in order to give effect to these provisions, we are required to reverse the conviction of defendant Jacko and remand his case to the district court for retrial by a petit jury chosen from a general venire which is to be selected according to law.

Although we do not base our decision to reverse defendant’s conviction on the following ground, we note that defendant contends that there was a systematic exclusion of blacks from the general venire. This assertion is based, for the most part, on the fact that although blacks comprise 21.1% of the voters of Evangeline Parish, the venire from which defendant’s jury was chosen had a black representation of only 5.33%. Defendant also contends that the venire for the previous week contained only one black person out of sixty (1.67%). Without reaching the issue of the racial composition of the venire we find it necessary to comment on the disturbing implications of this claim and its relation to the system used for selecting the general venire in Evangeline Parish.

This Court has previously approved the exclusive use of voter registration rolls for selection of the generál venire in this very Parish, Evangeline, there having been no showing in the record of discrimination against a class of people. State v. Daigle, 344 So.2d 1380 (La!977). In Daigle, however, the record did not reflect the method by which names from the voter registration rolls were selected. In this case the record shows that the names were not drawn indiscriminately from voter registration rolls. Rather, they were selected based on Ms. Pitre’s judgment that the individual selected would make a good juryperson. The process was described, in Ms. Pitre’s own words, as follows:

Well, I take the names from — most of the time I’m there ... (in the Registrar of Voters’ Office) ... doing my work with the jury cards or something, and a person will come in to register, and I’ll put an ear to where he’s talking or like I’ll take the name from their certificate if he signs to me — if its on a paper or something. I don’t put them down but for my knowledge, from the way the person talk that I think he could serve on the jury, then I put him down ... (for the general venire).

Although it may not be clear from the record that this selection process has resulted in systematic exclusion of a disproportionate number of blacks, we do note that the possibility for discrimination is very evident under this system, where selection of the venire is controlled by one person who uses ill-defined and subjective criteria. While underrepresentation of blacks on the venire from which Jacko’s petit jury was chosen may have been accidental, we cannot ignore the disturbing possibility that it was the result of the personalized selection process.

Decree

For the reasons assigned, the conviction and sentence of this defendant are reversed, and the case is remanded for retrial.

CONVICTION AND SENTENCE REVERSED; REMANDED FOR RETRIAL.

MARCUS, J., concurs.

WATSON and LEMMON, JJ., dissent and assign reasons.

WATSON, Justice,

dissenting.

The showing made is not sufficient to reverse the defendant’s conviction. While undesirable, the system of not calling ministers, attorneys, and persons over seventy years of age, who would be entitled to claim an exemption from jury service, does not show such a pattern of discrimination against a class of people as to deny defendant of trial , by a representative cross-section of the community. While the court should direct that the jury commission of Evangeline Parish change its practice, there is no necessity to reverse defendant’s conviction on this ground.

Therefore, I respectfully dissent.

LEMMON, Justice,

dissenting.

This court can correct the problem outlined in the majority opinion by issuing an order under our supervisory jurisdiction to terminate the improper practices used to select the jury venire for all criminal cases. It is not necessary, however, to reverse this conviction, because there is no showing of an unconstitutionally selected jury venire in this case. See La.C.Cr.P. Art. 419. Moreover, the evidence supporting the conviction was overwhelming.

      . In State v. Daigle, 344 So.2d 1380 at 1389 (La.1977), we held that, absent a showing of discrimination against a class of people, the exclusive use of voter registration rolls does not offend the constitutional guarantee of trial by a jury which is truly representative of a cross-section of the community.

      . Supreme Court Rule XXV Section 2, provides for the exemption from jury duty for certain groups or occupational classes such as public officers in the executive, legislative and judicial branches, attorneys, ministers, and anyone over the age of seventy. These are personal exemptions and any member of an included class may waive the exemption.

      .Supreme Court Rule XXVI, Section 2(a)(ii), states: "The jury Commission shall impartially select a general venire composed of all qualified persons, except: ... Those who are exempt and who, having been so advised, choose to claim the exemption.” (emphasis added). There is nothing in the record to show that Ms. Pitre only excluded those citizens who were advised that they could claim the exemption, and, having been so advised, chose to be exempt. On the contrary, her testimony indicates that if an individual falls within an exemptable class, unless that person requests jury service, she will automatically exclude his name from the general venire list.

      . Counsel for defendant testified that for the past three or four years he has reviewed every jury venire list. He stated that in the last two years he can't recall ever having seen a jury venire list with more than seven Negroes. In effect he was testifying that over that two year period the percentage of Negroes included in the venire had regularly fallen far short of 21.1%, the percentage of registered voters who are black and form part of the pool on which Ms. Pitre drew.

      . We do note, however, that in State v. Millsap, 258 La. 883, 248 So.2d 324, 329 (1971) we approved the use of a selection system which entailed the use not only of voter registration rolls but also "... telephone books, light meter lists ... union memberships, employee lists of large companies, a Junior Chamber of Commerce membership roster and church memberships.”