text:
    Charles SALES v. STATE.
    8 Div. 763.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-430.

      Jerry Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. . CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a jury trial under an indictment which charged that defendant:

“... did knowingly obtain or exert unauthorized control over one (1) navy blue sports jacket, the property of Cast-ner Knott Dry Goods Company, Inc., a Corporation, of the value of $50.00, taken from or in a building where said property was stored or kept for sale, with the intent to deprive the owner of said property, in violation of Section 13A-8-4 of the Code of Alabama.”

After the verdict and judgment finding and adjudging defendant guilty as charged and after defendant had been given due notice by the State that it would proceed against him under the Habitual Felony Offenders Act, a sentence hearing was conducted, at which hearing proof was made that defendant had been previously convicted of four felonies. The court sentenced defendant to imprisonment for forty years. Code of Alabama 1975, § 13A-8-4, the section of the Code that defendant is alleged in the indictment to have violated, provides that said crime “is a Class C felony.” Section 13A-5-9(c)(l), applicable to three or more felony convictions, provides:

“On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years; .... ”

The first issue presented by appellant is as to whether the trial court erred in its denial of defendant's motion for a continuance. The case had been set for trial on September 1, 1982. When the case .was called for trial on that date, the following occurred:

“MR. KNIGHT [Defendant’s attorney]: Your Honor, we would like to go on record with a motion to continue.
“THE COURT: Go ahead with your motion, please.
“MR. KNIGHT: Your Honor, I was appointed on August 13, 1982, to represent the defendant in two felony cases. Today is September the 1st, 1982, and I simply have not had an opportunity to adequately prepare for what I feel the Constitution entitles the defendant to in the way of a defense. The same two weeks that I have had since being appointed has been preoccupied with my commitments to other courts, including this court, and I feel like I cannot adequately preserve the rights of the defendant.
“THE COURT: What says the State?
“MR. MADISON [State’s attorney]: State is here and ready, Your Honor.
“THE COURT: What says the State in response to a motion for a continuance?
“MR. MADISON: We oppose it.
“THE COURT: Motion is denied.
“MR. KNIGHT: We except to the Court’s adverse ruling in regard to the motion to continue.”

Thereupon, a jury was selected and the case was tried.

Immediately after the verdict and judgment of conviction and sentence, an appeal was taken, and defendant’s appointed trial counsel was appointed to represent him on appeal and has filed a vigorous brief in appellant’s behalf. He emphasizes the above-quoted excerpt from the court reporter’s transcript in urging that the trial court should have conducted an “evidentia-ry hearing from which the trial court could have concluded that the appointed counsel had in fact been afforded sufficient opportunity to have become properly prepared to represent the Defendant during the trial of his cause.” He argues that in the absence of an evidentiary hearing, the statement of defendant’s counsel that he had not had an opportunity to adequately prepare for the trial should have been accepted by the court at face value and that this would have necessitated a favorable ruling on the motion for a continuance. In our opinion, this constitutes an oversimplification of the issue as to whether the trial court should be reversed for denial of the motion. It erroneously assumes that the only construction of the statement of defendant’s counsel is that it was a statement of a fact as distinguished from a statement of opinion or conclusion of defendant’s counsel, as to which there could be good reason for disagreement by the court and others. We have no doubt that defendant’s counsel sincerely wished he had more “opportunity to adequately prepare,” and we are confident that the trial court was of the same view. We cannot assume that at the time of the motion, the trial court was not acquainted with the nature of the case and a large part of the problems that would be presented during the trial of it. The record shows that the case had been pending in the trial court approximately ten months. The reporter’s transcript shows that the only issue of fact in the case was as to the description and the value of the property allegedly stolen. The transcript also shows that by the handling of the case by defendant’s attorney all of the witnesses for the State were thoroughly and intelligently cross-examined in such a way as to make their testimony as favorable to the defendant as possible. The transcript further shows that the defendant’s testimony was presented in such a way as to have been as favorable to him as possible. There is nothing in the record proper or the transcript to indicate that defendant was not as well represented by his counsel on the trial as he would have been if he as counsel had had three or four months to prepare for the trial. Although it appears to us, prima facie, that the State, in not agreeing to a continuance, and the court, in overruling defendant’s motion for a continuance, took considerable risk of a commission of error prejudicial to defendant, it also appears that probably the understanding of what was involved constituted reasonable assurance to them that there was no' such risk. In our opinion, denial of defendant’s motion for a continuance, when considered in the light of all the circumstances then existing, was well within the discretion of the trial court and was not erroneous.

As shown by numerous cases in Alabama, the determination of a motion for a continuance on the ground of lack of time for preparation by counsel is addressed to the sound discretion of the trial judge, whose decision will not be reversed except in cases of gross abuse of discretion. West’s Ala.Digest, Criminal Law, Key Number 590(2). Any noticeable difference in the results of the application of the principle over the past fifteen decades of its existence is largely by reason of different practical factors resulting from the mutations of time. During the past two decades, some criminal cases have been reversed for the denial of motions for a continuance on the ground of lack of time for preparation by counsel. We find no reversal for such reason in any case in which counsel had as much time for preparation as in the instant case. But for the next of only two issues raised by appellant, we would conclude that there was no injury to defendant by reason of defendant’s coun'sel’s not having more time to prepare for the trial. This leads us to a consideration of the remaining issue presented by appellant.

The other issue presented by appellant pertains to the action of the trial court during the redirect examination of the principal witness for the State, Mr. Wayne Powell, who was security manager of Cast-ner Knott Drygoods Company, the victim of the alleged theft. He testified on direct examination in pertinent part as follows:

“I was sitting on the cat walk. It was about 2:30. I was sitting on the side facing the Winn Dixie when I observed Charles Sales come in between linen department and our men’s department. When he came in he got a bag, one of our shopping bags and a shopping cart, folded it up, put it under his shirt, walked to the men’s department, took a navy blue blazer and went right back out of the store.
“Q. Can you tell us what the retail value of that jacket was, please?
“A. Ninety dollars.
“Q. Was that jacket worth at least fifty dollars?
“A. Yes, it was.
“Q. All right. Now, going to the point you said you saw him originally come in and fold a bag and put it under his shirt — is that correct?
“A. Yes.
“Q. Did he do anything with that bag when he got the jacket?
“A. When he got the jacket he just walked out with the bag in his hand.
“Q. All right. He kept the bag and he took the jacket out, too?
“A. Yes, the bag was — the jacket was in the bag when he went out.
“Q. Did the defendant walk or run across the parking lot when he left the store?
“A. He ran a short distance. His car was parked close by.
“Q. Was he walking or running though?
“A. Running.
“Q. Did he get in his car and leave?
“A. Yes.”

During the cross-examination of Mr. Powell, he was questioned as to how close he was, while observing the defendant, to a control tower where he could activate one of nine cameras and thereby take a picture of the defendant. During that inquiry, the following questions were asked and answers given:

“Q. And the controls to that video tape recorder are in this tower which is about fifteen feet away from where you were standing when the person came in the store to start with?
“A. Yes, sir.
“Q. Now, when you saw that person come in the store, I guess you were suspicious the minute you saw him, weren’t you?
“A. Well, when I saw him take — yes, sir, I was.
“Q. The very minute he walked in the door you were suspicious?
“A. Before he walked in the door, he had got the shopping bag.
“Q. Before he walked in the door?
“A. Yes, sir. We have two sets of doors. We have the outer door, and you have the inner door, and when he walked through the door it is a little stand there with shopping bags, and you can put twenty-five cents in and get a shopping bag. That time when he came through he got the shopping bag.
“Q. All right. As an experienced security man, you — when you see somebody getting a shopping bag (snapping fingers) you automatically watch him, don’t you?
“A. No, sir.
“Q. When they roll it up and put it under their coat or under their shirt, do you watch them?
“A. Yes, sir.
“Q. At that point you started watching the person you testified having seen?
“A. Yes, sir.
“Q. The minute he got inside that vesti-ble [which we construe as vestibule] from the outer door and got in the inner door and got inside the store area, you had seen him roll up a shopping bag and put it under his shirt, is that right?
“A. Yes, sir.
“Q. How far from that point did you see him walk to the rack where the coat was?
“A. A hundred or a hundred and fifty feet.

The cross-examination continued for about twelve transcript pages, and then redirect examination was in progress about two pages when the following occurred on redirect examination:

“Q. I believe Mr. Knight asked you before we broke for lunch — I believe his question was whether or not you suspected Charles Sales when he first came in the door. Do you recall him asking you that.
“A. Yes.
“Q. All right. And I think your response was affirmative, that you did suspect him, is that correct also?
“A. Yes, sir.
“Q. Tell the jury what you based that suspicion on?
“MR. KNIGHT: Wé object to that, Your Honor.
“THE COURT: I think he is entitled to explain it.
“Q. (By Mr. Madison): Mr. Knight asked the. question. Now tell us what you based that suspicion on.
“MR. KNIGHT: We object, Your Honor, on the basis that calls for irrelevant, illegal and incompetent prejudicial response.
“THE COURT: I think that you have gone into it, and he has a right to explain it. I am going to let him answer.
“MR. KNIGHT: We except to the Court’s adverse ruling.
“A. I had reason to believe that he had prior — problems with the police and a lot of other merchants in the mall—
“MR. KNIGHT: We object and move for a mistrial.
“THE COURT: Overruled. Let him finish his answer.
“MR. KNIGHT: Except to the Court’s adverse ruling. Your Honor, we contend that we can’t object to the questions if he is—
“THE COURT: I have overruled your objection to the question. Let him answer the question.
“MR. KNIGHT: We except to the Court’s adverse ruling.
“A. A lot of the merchants in the mall know him, and whenever he is spotted we have a red alert that one merchant would pass around to the other one. And, like I said, I knew him from school, and I knew that he had been in and out of trouble, so that gave me probable cause to watch him. Not saying just because he had did anything before that he would do it again, but I figured, .you know, that I had probable cause to watch him just to see what would happen.
“MR. KNIGHT: Your Honor, at this time we object and move for a mistrial and state for the record that the witness has gone into obviously rehearsed and inflammatory matters. We submit that there is no way that had the prosecutor not have conferred with the witness that the prosecutor would have known what his answer was going to be to that broad question. We move for a mistrial.
“THE COURT: Motion is denied.
“MR. KNIGHT: We except to the Court’s adverse ruling.
“Q. (By Mr. Madison): Mr. Powell, have I ever before this particular occasion asked you that particular question?
“MR. KNIGHT: We object to that.
“THE COURT: Overruled.
“Q. (By Mr. Madison): Have I ever asked you that question?
“A. No, you have not.
“Q. All right. Can you tell the jury that there is no doubt in your mind that Charles Sales was the person you saw take that coat out?
“A. There is no doubt in my mind.
“Q. You saw him from the moment he took it off the rack until the moment he left the store, is that right?
“A. That is correct.
“MR. MADISON: That is all.
“THE COURT: Anything further of this witness?
“MR. KNIGHT: We have nothing.
“THE COURT: All right. I want to give you an instruction, ladies and gentlemen, as concerns a portion of this witness’ testimony.
“The witness was questioned and gave an answer as to why he was suspicious of the defendant when he came in the store. I allowed that only in response to a question on cross examination as to whether he was or whether he wasn’t, and his explanation as to his motive, etc., is the only reason that answer is allowed. “If there is any implication by the witness’ answer that he might have been involved in some other offense on some other occasion or some other time, that would be improper for you to consider that.
“This defendant is on trial for one charge, one offense only, and that is the alleged theft of a blue blazer worth over fifty dollars.
“Is there anybody on the jury that can’t follow my instructions now and put the testimony out of their mind other than for the limited purpose I have allowed it in? If you can’t follow the Court’s instruction, hold up your hand.
“All right. I am satisfied that you will treat it for the limited purpose I allowed it. Go ahead.
“MR. KNIGHT: Your Honor, for the record we would like to renew our motion for a mistrial on the basis that the testimony was inirradicable [ineradicable].
“THE COURT: Overruled.
“MR. KNIGHT: We except.
“THE COURT: Go ahead. Come down.”

Appellant contends there was an error in overruling defendant’s objection as shown above to the questions asked Mr. Powell on redirect examination and in overruling defendant’s motion for a mistrial by reason of the answers to such questions. The cardinal portion of appellee’s countercontention is thus stated in appellee’s brief:

“The State’s position is twofold: (1) the disputed testimony was properly received as a full explanation of his cross-examination testimony of why he was suspicious of the Appellant — a subject initiated by the Appellant and (2) if the testimony was improper, the judge’s admonition, reproduced above, was quite adequate to cure any harm.”

As to (1) of appellee’s two-fold position, appellee states:

“The State relies on the general proposition that: when one party inquires into a matter the other party should be allowed to go into the entire transaction and give evidence, if he can, which would tend to explain the detrimental effects of the initial proof. Ex Parte Bayne, 375 So.2d 1239 (Ala.1979) quoting Brown v. State, 37 Ala.App. 595, 74 So.2d 521, cert. denied 261 Ala. 696, 74 So.2d 524 (1954); accord, Wyrick v. State, 409 So.2d 969 (Ala.Cr.App.1981), cert. denied, 409 So.2d 969 (Ala.1982); Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956).”

In our opinion, the authorities cited do not support the contention that the testimony under consideration “was properly received.” It did not “tend to explain” any “detrimental effects,” of the testimony of the witness on direct examination that he was “suspicious of the defendant when he came in the store.” Furthermore, the witness took it upon himself to go far beyond an explanation of his being suspicious of defendant when he came into the door. The witness used the opportunity presented to inject that which could have been reasonably understood as a habit that “whenever he [the defendant] is spotted” merchants and the witness “have a red alert that one merchant would pass around to the other one.” The inquiry brought forth a barrage of testimony, which, in its very nature, is generally inadmissible for the sole purpose of suggesting that the accused is more likely to be guilty of the crime for which he is being tried. We have no doubt that the answer was sufficient to cause the jury to believe that the witness thought that defendant was guilty and that such belief was largely by reason of the facts that a “lot of the merchants in the mall know him, and whenever he was spotted we would have a red alert that one merchant would pass around to the other one ... that he had been in and out of trouble.” Neither on the trial nor on appeal do we find a contention by the prosecution that the evidence was admissible under any principal exception to the exclusionary rule. In the first part of appellee’s “two-fold” position, appellee relies exclusively upon the claim that “appellant opened the door for the State’s inquiry into the witness’ suspicions,” and entirely upon the authority of cited cases that hold, as appellee correctly states, that “when one party inquires into a matter the other party should be allowed to go into the entire transaction and give evidence, if he can, which would tend to explain the detrimental effects of the initial proof.” (Emphasis supplied.) The principle has found latest expression by Judge Tyson in Wyrick v. State, Ala.Cr.App., 409 So.2d 969, 975, cert. denied, 409 So.2d 969 (1982), as follows:

“Even if it is assumed that the prosecution’s questioning of the appellant about her daughter’s having been ‘in some trouble’ with the juvenile authorities was illegal, we find no error. Where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment. Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956). If illegal evidence is introduced by one party and admitted, then the opponent has the right to introduce illegal evidence in rebuttal, even though the opponent failed to object to the initial introduction of illegal evidence. Johnson, supra.

It is to be noted that the noun “detriment,” or the adjective “detrimental,” is in both of the quoted statements of the controlling principle. It is clear that the word “detriment” as used has reference to detriment to the party against whom the evidence as introduced, the State in the instant case. We look in vain for any such detriment. Whatever detriment there was, was detriment to the defendant, particularly in that part of the testimony of the witness to the effect that he was suspicious of defendant and watched him as he watches other persons entering the store when they get a shopping bag and “roll it up and put it under their coat or under their shirt.” In our opinion, there was nothing helpful to defendant or detrimental to the State in the testimony of the witness on cross-examination by the defendant’s attorney as to the witness’ being suspicious of defendant when he first walked into the store. In our opinion, the trial court was in error in its ruling as shown by the following portion of the transcript:

“Q. (By Mr. Madison): Mr. Knight asked the question. Now tell us what you based that suspicion on.
“MR. KNIGHT: We object, Your Honor, on the basis that calls for the irrelevant, illegal and incompetent prejudicial response.
“THE COURT: I think that you have gone into it, and he has a right to explain it. I am going to let him answer.
“MR. KNIGHT: We except to the Court’s adverse ruling.”

We realize that there may be a trace of detriment to defendant in the testimony of Mr. Powell upon his being asked on cross-examination as to whether the witness was suspicious of defendant when defendant first walked in the door, which seems to be suggested by the following sentence in appellant’s brief:

“... The cross-examination questions seeking to elicit testimony regarding whether or not Mr. Powell was suspicious of the Defendant was surrounded by questions implying that the witness, Powell, had sufficient opportunity to activate video tape recording cameras in order to establish whether Defendant stole a blue blazer or a windbreaker.”

The reference is to that part of the cross-examination of the witness that continued for several pages prior to the questions as to whether and when the witness became suspicious of the defendant. The particular part of the cross-examination was at a time when defendant’s attorney, with no more information on the subject than that which he had learned from listening to the previous testimony in the case, would have known that the entrance to the store consisted of a large vestibule containing a door and doorway to the outside of the building and a door and doorway to the inside of the store (the place where goods were kept for sale). Having in mind that defendant’s attorney had previously stated that he was not as well prepared as he would like to be for the trial of the ease and requested a continuance, we can well understand his difficulty in cross-examining the witness as to that part of the store. The witness made it clear that from his position at the time he could well see the defendant while he was in the vestibule in which the defendant obtained a shopping bag and rolled it up and put it under his shirt. On the whole, the testimony of the witness on cross-examination as to the point was not detrimental to the State; it was detrimental to the "defendant. The cross-examination as to this feature of the case was a boomerang. How much of the result is attributable to the fact that defendant’s attorney did not have more time to prepare the case, we, of course, are unable to say.

We do not agree with appellee’s position that the trial judge’s “admonition” was quite adequate to cure any harm. We refer particularly to the following paragraphs of the “admonition”:

“If there is any implication by the witness’ answer that he might have been involved in some other offense on some other occasion or at some other time, that would be improper for you to consider that.
“This defendant is on trial for one charge, one offense only, and that is the alleged theft of a blue blazer worth over fifty dollars.”

The testimony of the witness on redirect examination was more than an “implication” that defendant “might have been involved in some other offense on some other occasion or at some other time”; it was a positive declaration that “he had been in and out of trouble,” which is the equivalent, we think, of testimony that he had “been involved in some other offense on some other occasion or at some other time.” We doubt that the injury could have been eradicated by any other instruction, even one without the hypothesis contained in the instruction of the trial court, but even if it was eradicable it was not eradicated.

It should be kept in mind that at the time the defendant’s attorney objected to the question we previously discussed on redirect examination, defendant and defendant’s attorney had probably not decided whether the defendant would testify. There was nothing then in the record proper or in the transcript to indicate that defendant would probably take the stand. When the State rested in the case, the defendant promptly took the stand. He was the only witness to testify in his behalf. He admitted in his testimony that he had stolen and taken an item from the store under circumstances narrated by witnesses for the State. However, he testified that the item stolen was a “white windbreaker coat” with a “nylon-like fabric,” with a price thereon of $19.22, that the item was not a “navy blue sports jacket ... of the value of $50.00” as alleged in the indictment. In its oral charge to the jury, the court stated that under the evidence the jury could return only one of two verdicts, one finding the defendant guilty of theft in the second degree and the other guilty of theft in the third degree, and correctly made it clear to the jury that, if the property stolen exceeded twenty-five dollars in value, the defendant would be guilty of a felony of theft of property in the second degree but that, if it did not exceed twenty-five dollars in value, he would be guilty of the misdemeanor of theft of property in the third degree. It is beyond question that if the verdict and judgment had been for theft of property in the third degree, the Habitual Felony Offenders Act could not and would not have been applied and that instead of a sentence of imprisonment for forty years, defendant could not have received a sentence of imprisonment for more than one year.

We are unable to determine from our review of the transcript whether defendant would have taken the stand if Mr. Powell had not been allowed to testify as to his “reason to believe” that defendant “had prior — problems with the police and a lot of other merchants in the mall” and that defendant “had been in and out of trouble,” et cetera. Furthermore, we cannot determine with reasonable certainty that the jury would have found defendant guilty of theft in the second degree or theft in the third degree in the absence of the testimony of Mr. Powell as to defendant’s previous trouble. At any rate, we cannot say with absolute certainty that, in that circumstance, the jury would not have found defendant guilty of the lesser included offense, theft in the second degree. We are unable to say whether defendant’s attorney would have asked Mr. Powell whether he was suspicious of the defendant when defendant “walked in the door” if defendant’s counsel had had more time to prepare the case for trial, but we are confident that he will not do so in the event of another trial. We find it necessary to reverse the judgment of the trial court and remand the case for another trial, by reason of the error committed by the rulings as to the evidence elicited by the State in its redirect examination of the witness, Mr. Powell, as set forth above.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

TYSON, HARRIS and SAM TAYLOR, JJ., concur.

BOWEN, P.J., concurs in result only.

HUBERT TAYLOR, J., dissents.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Thomas E. HINTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1199.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Rehearing Denied March 14, 1984.
    Jerry Hill, Public Defender, Bartow, and Állyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant complains that the court erred in vacating his earlier sentences and in resentencing him to longer terms.

Appellant pled guilty to two counts of armed robbery pursuant to a plea bargain under which he would be sentenced to ten years in prison. The court’s acceptance of the bargain was premised on defense counsel’s statement that he believed appellant’s codefendant had been offered a plea bargain for ten years. At that time the court and the assistant state attorney seemed to agree that this was a correct representation. Appellant was adjudicated guilty and sentenced to two concurrent terms of ten years imprisonment.

Subsequently, the state filed a motion to vacate appellant’s plea . and sentence alleging that defense counsel's representation as to the length of time offered to the codefendant was untrue. The state contended that the plea bargain was invalid because it was accepted under false pretenses. Over appellant’s objection, the court granted the state’s motion. The court found as a matter of fact that acceptance of the plea bargain had been the result of false representations made inadvertently by defense counsel. The court offered the appellant a choice either of going to trial or entering a new plea- based on correct representations.

Appellant subsequently entered pleas of nolo contendere to the armed robbery charges, reserving the right to appeal the court’s ruling on the motion to vacate. Appellant was sentenced to two concurrent terms of life imprisonment.

The fifth amendment to the United States Constitution and article I, section 9, of the Florida Constitution both provide that no person shall be put in jeopardy more than once for the same criminal offense. This court has previously held that resentencing on the same charge is a violation of double jeopardy. Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976); see also United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Troupe v. Rowe, 283 So.2d 857 (Fla.1973). Once a defendant begins to serve his sentence, the court has no authority to resentence him to a longer term of imprisonment. Beckom v. State, 227 So.2d 232 (Fla. 2d DCA 1969).

In appellant’s case, the original ten-year sentences were legal sentences which could not thereafter be increased. Accordingly, the two life sentences are hereby vacated, and the case is remanded for reinstatement of the original sentences.

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

      . It should be noted that Florida Rule of Criminal Procedure 3.800 allows a court at any time to correct an illegal sentence or within certain prescribed times to reduce a legal sentence. The rule does not authorize the increase of a legal sentence. Royal v. State, 389 So.2d 696 (Fla. 2d DCA 1980).


author: SCHEB, Judge.

text:
    Carl J. THORNBURG and Barbara Ann Thornburg, husband and wife, individually and as parents and natural guardian of Carl Douglas Thornburg, a minor, Appellants, v. Horace PURSELL, Patricia Pursell, Joseph Pursell, Michelle Woolever, Flavius Johnson, Gregory Pursell, Joni Pursell, Terry Pursell, George Hill, and Mary Hill, d/b/a Fifty’s Fantasy and/or Family Entertainment Center, and the City of Arcadia, a municipal corporation, Appellees.
    No. 83-1113.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1984.
    Rehearing Denied March 12, 1984.

      Arnold Ginsberg of Horton, Perse & Ginsberg, Miami, and Law Offices of Bruce L. Schemer, Fort Myers, for appellants.
    Kenneth W. Beesting, Arcadia, for appel-lees Horace Pursell, Patricia Pursell, Joseph Pursell, Michelle Woolever, Flavius Johnson, Gregory Pursell, Joni Pursell, Terry Pursell, George Hill and Mary Hill, d/b/a Fifty’s Fantasy and/or Family Entertainment Center.
    James H. Burgess, Jr., of Syprett, Mesh-ad, Resnick & Lieb, P.A., Sarasota, for appellee City of Arcadia.
   SCHEB, Judge.

The Thornburgs sued appellees on the ground that their negligence resulted in injuries to Carl Thornburg, a minor. A jury returned a verdict for the plaintiffs and assessed one-third of the negligence against the Pursells, one-third against the City of Arcadia, and the remaining one-third against the minor plaintiff. The Thornburgs sought a new trial on the ground that damages were inadequate. The trial court denied their motion and this appeal ensued.

Carl Thornburg, then age eleven, was injured on November 28, 1979, when he was riding his bicycle on the premises of Fifty’s Fantasy in the City of Arcadia. Two of the child’s permanent front teeth were knocked out. The evidence was sufficient to sustain the jury’s finding of liability and there was no credible evidence offered to suggest the child’s injuries were not the direct result of the accident. The dentist, who fitted Carl with a removable partial denture, charged $535; another dentist who examined him charged $40. In addition to Carl’s testimony of the pain and suffering he sustained as a result of the accident, the expert dental testimony also disclosed that Carl would eventually need an affixed bridge to replace the removable partial denture, which would cost approximately $1,500.

The jury was specifically instructed to consider as elements of damage: bodily injury; pain and suffering, past and future; and reasonable medical expenses, past and future. The jury awarded the plaintiffs $575, the precise amount of the past medical expenses, and made no allowance for pain and suffering and future medical expenses.

Under these facts no reasonable jury would have returned a verdict for the actual medical expenses alone. See Griffis v. Hill, 230 So.2d 143 (Fla.1969). Where, as here, a jury finds liability and awards only the amount of the medical expenses incurred, despite evidence of pain and suffering and uncontradicted testimony as to the need for future medical expenses, the award is considered to be inadequate. Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980), aff'd., 401 So.2d 1322 (Fla.1981). See also Hector v. Florida Farm Bureau Mutual Insurance Co., 364 So.2d 1253 (Fla. 2d DCA 1978). Under these circumstances it was error for the trial court to deny plaintiffs’ motion for a new trial on the issue of damages.

We have examined and reject the cross-appeal filed by the City of Arcadia.

Accordingly, we affirm the judgment as to liability but remand for a new trial on the issue of damages.

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


author: PER CURIAM.

text:
    Robert W. CURRY, Appellant, v. WAYNE LUTTER ENTERPRISES, INC., Appellee.
    No. 83-2026.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Michael J. Volpe of Monaco, Cardillo, Keith & Volpe, Naples, for appellant.
    Michael F. Beal of William L. Blackwell, P.A., Naples, for appellee.
   PER CURIAM.

AFFIRMED. See Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978).

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


text:
    Jose S. SOLIS a/k/a Jose Monje, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2331.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Bennett H. Brummer, Public Defender, and Chaykin, Karlan & Jacobs and Sharon B. Jacobs, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   CORRECTED OPINION

PER CURIAM.

Affirmed. Faison v. State, 426 So.2d 963 (Fla.1983); Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Purdy v. State, 343 So.2d 4 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977); see Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979).


author: PER CURIAM. HURLEY, Judge,

text:
    Donald L. WARTENA and Donald L. Wartena, as personal representative of the Estate of Ernestina Wartena, deceased, Appellant/Cross Appellee, v. George F. deCLAIRE, Appellee/Cross Appellant.
    No. 83-606.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Donald C. Sider of Suto & Greenwald, P.A., and Steven I. Greenwald of Law Offices of Steven I. Greenwald, P.A., Boca Raton, for appellant/cross appellee.
    Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellee/cross appellant.
   PER CURIAM.

Affirmed.

LETTS, J., and VOCELLE, L.B., Associate Judge, concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I would reverse the $24,500 final judgment entered in favor of the plaintiff/ap-pellee because I do not believe it is supported by competent substantial evidence.

George deClaire is an attorney. He is also the former son-in-law of Ernestine and Donald Wartena. By his own admission, deClaire performed legal services for his in-laws for over nineteen years without ever presenting a bill or maintaining a time record. Indeed, he testified that he has no way of gauging the actual time expended on this work and has never discussed a specific fee arrangement with his in-laws. Nonetheless, when deClaire’s nineteen year marriage ended in a bitter, hard-fought divorce, he instituted suit against his in-laws and, for the first time, claimed entitlement to $580,000 for professional services rendered during the preceding nineteen years. The trial court narrowed the time frame by granting a partial summary judgment. The court applied the four year statute of limitations contained in section 95.11(3)(k), Florida Statutes (1981), and limited recovery to services performed after March 21, 1976.

The dispositive issue in this case is whether there was an express or an implied contract between the parties which entitled Mr. deClaire to compensation for services rendered. Obviously, the trial court’s award of $24,500.00 signifies an affirmative finding which, in turn, comes to this court clothed with a presumption of correctness. Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). Yet, it is equally true that to be affirmed on appeal, a final judgment must be grounded in competent substantial evidence. Walker v. Harris, 398 So.2d 955 (Fla. 4th DCA 1981). The record in the case at bar is simply devoid of any competent substantial evidence to support the final judgment. Mr. deClaire’s own testimony established that throughout the nineteen year period, he never presented a bill, never maintained a time record and never discussed a fee arrangement with his father-in-law. This testimony, in my view, absolutely negates Mr. deClaire’s present claim for compensation. The relationship between the parties, coupled with Mr. de-Claire’s expectation that some day he would probate the estate of his well-to-do father-in-law fully explain the course of conduct.

On the other hand, even if one assumes that the record does contain sufficient evidence to justify an award, it does not support the $24,500 figure awarded by the trial court. Mr. deClaire testified that he performed legal services in connection with four different projects after March 21, 1976. The first project involved the Warte-nas’ purchase of a lot and the subsequent building of a home thereon. It was undisputed, however, that the closing took place in October, 1975 — -well before the March 21st cut-off date. On cross-examination, Mr. deClaire admitted that the deed and other related papers were mailed to the Wartenas in January of 1976 — again, before the cut-off date. Furthermore, correspondence in the record suggests that Mr. deClaire’s representation at the closing was done for the express purpose of saving his father-in-law additional expense. In a letter dated August 10, 1977, addressed to Alexander L. Suto, Esq., Mr. deClaire wrote, “I closed the land purchase on Don’s present home which saved him a respectable fee.” In short, deClaire’s services connected with the closing should not have been considered by the trial court. As for the building of the home, the only service to which Mr. deClaire could point took place “in the spring of ’76 sometime.” This involved one or two conversations with Matthew Sicca, a representative of the Royal Palm Improvement Association. According to Mr. deClaire, Mr. Sicca bicycled over to the deClaire home where the two men agreed that the association would approve the plans for the Wartenas’ home if the Wartenas agreed to place a trellis or walkway between the home and a proposed gazebo — hardly the type of professional service to justify a $24,500 fee.

Mr. deClaire next testified that he handled an insurance claim for his father-in-law involving a stolen automobile. This work was also supposedly performed after March 21, 1976. However, on cross-examination, Mr. deClaire admitted that “[c]on-ceivably I’m wrong.” The Wartenas then produced the insurance agent who actually handled the claim. He testified that his company’s records reflected that the car was reported stolen on August 4, 1974.

The third event for which Mr. deClaire sought compensation involved a business transaction between Mr. Wartena and his other son-in-law, James A. Mullen, Jr. Mr. deClaire testified that pursuant to his advice, Mr. Wartena executed a limited guaranty on a printed bank form. This document enabled Mr. Wartena to give financial backing to Mr. Mullen while limiting Mr. Wartena’s financial exposure. When pressed for the date of this transaction, Mr. deClaire frankly admitted that he was relying on memory, but stated that he believed it occurred after March 21, 1976. The Wartenas, however, produced the signed, notarized original limited guaranty form which reflects an execution date of May 16, 1973.

The only transaction which conceivably occurred after the March 21st cut-off date involved the sale of the Wartenas condominium apartment. The deed was first recorded on March 19, 1976, but the omission of a witness’s signature caused Mr. de-Claire to file a corrected warranty deed on March 29, 1976. Also, Mr. deClaire prepared a letter of transmittal concerning a parking spacé at the condominium on April 17, 1976. Again, assuming for the sake of argument that this transaction merited some compensation, it cannot be contended that it would justify a $24,500.00 award.

Finally, it is impossible not to note the connection between this case and the de-Claires’ dissolution litigation. Mr. deClaire revealed the animus underlying both cases when he wrote to Alexander L. Suto, Esq., an attorney who represented Mrs. deClaire during a portion of the dissolution litigation, and stated:

In all events, I am now faced with the unpleasant fact that Donna claims a special equity in my home due to all of her “family contributions,” most of which went into gewgaws for herself; so I have no other recourse than to sue for the reasonable value of my services. As soon as the dissolution case is concluded, I will, unless the matter of my fee is satisfactorily settled, put the matter in suit. As my offhand choice of counsel, I am thinking of Roger Harper since that would be a good type of case for him and, as you know, he is tenacious. You will enjoy working with him.

With this record it was incumbent on the trial court to be especially cautious to prevent the truth-seeking-process from being subverted by a personal vendetta. Unfortunately, it appears that this is a ease in which spite prevailed over proof. However, an appellate court is empowered to reject “inherently incredible and improbable testimony,” Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976), and, therefore, I would discount Mr. deClaire’s explanation. Additionally, because the final judgment cannot be squared with the proof, I would reverse and remand with instruction to enter a final judgment in favor of the appellants.


text:
    Phyllis Newkirk SCOTT, Appellant, v. Loren Lee CLUSTER and USAA Casualty Insurance Company, Appellees.
    No. 83-443.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      Dale P. Redlich of Redlich & Moldof, P.A., Fort Lauderdale, for appellant.
    William R. Scherer of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   PER CURIAM.

REVERSED. See VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983).

LETTS, BERANEK and HERSEY, JJ., concur.


text:
    Ben BOGUN, as Personal Representative of the Estate of Gladys Bogun, deceased, Appellant, v. Robert J. SNYDER, D.P.M., James B. Morris, M.D. and Sachs, Morris & Sklaver, M.D., P.A., a Florida corporation, and Janee D. Steinberg, M.D., Individually, and Janee D. Steinberg, M.D., P.A., Appellees.
    No. 83-652.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Edward A. Perse of Horton, Perse & Ginsberg, and J. Arthur Hawkesworth, Miami, for appellant.
    Bruce F. Simberg and Michael K. Wilen-sky of Conroy & Simberg, Hollywood, for appellee, Robert J. Snyder, D.P.M.
    Richard G. Collins, Fort Lauderdale, for appellee, Janee D. Steinberg.
   PER CURIAM.

The entire record in this case, including the deposition of Dr. Edward Dickstein, compels us to conclude that it was error to award summary judgment to the two health care providers in this case. Accordingly, we reverse and remand.

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: HERSEY, Judge.

text:
    Theodore MENUT, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-713, 83-1469.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Theodore Menut, convicted of murder, appealed and while that appeal was pending here he was twice called to testify in trials against one Christopher Clugston. On each occasion he invoked his Fifth Amendment privilege, was granted immunity, refused to testify and was held in contempt. The two judgments of contempt are the subject of this consolidated appeal.

Appellant argues first that the immunity defined in Section 914.04, Florida Statutes (Supp.1982), is not coextensive with the scope of the Fifth Amendment because it does not provide derivative use immunity. “[Ijmmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination and therefore is sufficient to compel testimony over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212, 222 (1972). The Florida Statute provides both use and derivative use immunity. State v. Harrison, 442 So.2d 389 (Fla. 4th DCA, 1983); Novo v. Scott, 438 So.2d 477 (Fla. 3d DCA 1983); State v. McSwain, 440 So.2d 502 (Fla. 2d DCA, 1983).

Next, appellant maintains that he could not be compelled to testify because he would not be immune from prosecution for perjury. It is true that a grant of immunity is not a license to perjure oneself. It is equally true, however, that a statement given under a grant of immunity may not itself be used to convict for perjury by inconsistent or contradictory statements. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). See also The Florida Bar v. Doe, 384 So.2d 30 (Fla.1980) and State v. Harris, 425 So.2d 118 (Fla. 3d DCA 1982). This rule is obviously inapplicable where the state specifically refuses to grant immunity for perjury. Salem v. State, 305 So.2d 23 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975); Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975), cert. discharged, 344 So.2d 567 (Fla.1977); Feldman v. State, 348 So.2d 415 (Fla. 1st DCA 1977).

We affirm the conviction and find no fault with either of the sentences imposed.

AFFIRMED.

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


author: BERANEK, Judge.

text:
    Leonard TRINCA, Appellant, v. STATE of Florida, Appellee.
    No. 83-1330.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged with trafficking in cannabis, trafficking in methaqualone, two counts of battery on a law enforcement officer, and possession of diazepam. He was found guilty of trafficking in meth-aqualone and one count of battery on a law enforcement officer. He raises six points on appeal, one of which concerns prosecuto-rial misconduct and mandates reversal.

Susan, the daughter of appellant’s wife, was a drug user with many arrests. She was obviously involved in the events leading up to appellant’s arrest. During the investigation, a statement was taken by the police officers from Susan. The State never subpoenaed Susan to appear at trial and the State knew she was not to be called as a defense witness. However, during cross-examination of appellant, the State asked the following questions:

Q. Were you aware that Susan gave a statement to the police at the time of this incident?
A. Am I aware of it?
A. Uh-Uh.
A. Yes.
Q. And are you aware_

A defense objection was made to prevent the State from elaborating on the statement. The prosecutor apparently recognized the impropriety of the question in the following colloquy:

The Court: Do you have a response to the objection?
Prosecutor: No response.
The Court: Is there going to be a hearsay problem or not?
Prosecutor: No.
The Court: Why not?

Prosecutor: I will withdraw the question. Unfortunately, the subject of Susan and her statement was not so easily withdrawn. Both the prosecutor and defense counsel bantered Susan’s name about during their arguments to the jury and in his final argument, the prosecutor argued to the jury: “Then I would have loved to put the stepdaughter on if I could ... he has the same subpoena power that I do. How did he get the other witnesses in here?” (Emphasis supplied). Not only did the prosecutor imply that the witness Susan was unavailable to him, he then went on to imply that the appellant had the burden of producing witnesses to show his innocence. After the above comment, appellant immediately moved for a mistrial which was denied and then moved for á curative instruction which was also denied.

Clearly, Susan and her statement should not have been interjected into this case, and it is obvious that appellant was prejudiced by it. During deliberations, the jury sent the trial court two questions, one being, “What was Susan’s statement to the police?”, and the second being, “Why wasn’t Susan subpoenaed?” This is not a situation where we must speculate on whether the error was harmless. We reverse based on Michaels v. State, 429 So.2d 338 (Fla. 2d DCA 1983). In that ease, the State commented in closing argument on the failure of the defendant to call defendant’s daughter as a witness. It had been demonstrated during the trial that the defendant’s daughter was present when the alleged crime occurred and was available to testify. The Second District Court held that it was clearly improper for the State to comment on the defense’s failure to call witnesses, citing Kirk v. State, 227 So.2d 40 (Fla. 4th DCA 1969). We remand for a new trial.

REVERSED AND REMANDED.

DELL and WALDEN, JJ., concur.


author: HANLON, MORTON, J., Associate Judge.

text:
    Verdie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1175.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   HANLON, MORTON, J., Associate Judge.

Appellant Verdie Williams appeals the trial court’s order revoking his probation and imposing judgment and sentence on the underlying offenses of aggravated battery and witness tampering. We reverse.

Appellant was placed on two years probation on the aggravated battery offense and one year probation on the witness tampering charge on September 30, 1980. Appellant subsequently was charged on January 15,1982, with violating the terms of his probation.

Appellant attended his ensuing February 2, 1982, arraignment hearing unaccompanied by counsel, even though appellant’s court file indicated that Attorney Richard Buckle had previously moved for reduction of appellant’s bond. The trial court accepted appellant’s plea of not guilty and scheduled a revocation hearing for February 22, 1982.

When neither appellant nor Attorney Buckle attended the scheduled revocation hearing, the state requested a three-day continuance in order that Attorney Mark Lipinski could be notified. According to the state’s records, Lipinski, and not Buckle, represented appellant.

On February 25, 1982, appellant appeared before the trial court unaccompanied by either Lipinski or Buckle. After questioning the state attorney as to whether Mr. Buckle still represented appellant, and being assured by appellant that Buckle, in fact, was still actively pursuing the case, the trial court continued the revocation hearing until March 8 and directed that appellant be given an opportunity to call Buckle from jail.

At the hearing on March 8, the trial judge informed appellant that the court’s personal inquiry had disclosed that Attorney Buckle no longer represented appellant; in light of this development, appellant would have to represent himself. Appellant protested that he was unable to defend himself, that he had been denied the use of the jail telephone to confirm Buckle’s representation, and that he had already contacted the public defender’s office. When appellant specifically stated, “Your Honor, I want someone to defend me,” the trial judge responded that appellant could not wait until the day of the trial to request representation by the public defender. The court admitted, however, that appellant would have received counsel had his request been timely.

The trial court then heard testimony regarding appellant’s asserted probation violations and ultimately adjudicated him guilty of the underlying offenses. At a subsequent sentencing hearing, at which appellant was represented by the public defender’s office, the court revoked appellant’s probation and sentenced him to ten years imprisonment for aggravated battery and five years concurrent imprisonment for witness tampering. Appellant received no credit for time previously served in jail as a special condition of his probation.

As this court has twice recently held, “an indigent probationer is entitled to counsel at a hearing involving revocation of probation as well as at the time of sentencing, absent valid waiver of right to counsel.” Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983); Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983). In Smith, we specifically declined to adopt the rule of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which accords counsel to an indigent probationer only when he denies having committed the alleged violation or when other substantially complicated reasons justify or mitigate a violation and make revocation inappropriate. See 427 So.2d at 774.

Although appellant was never adjudged indigent, his representation by the public defender at sentencing necessarily indicates his indigency. See § 27.51(2), Fla.Stat. (1981). Furthermore, appellant’s vigorous protest at the March 8 hearing regarding his lack of legal representation precludes any argument that appellant waived his right to counsel.

While we sympathize with the trial court’s reluctance to condone yet another continuance of appellant’s hearing, we conclude that the court erred in subjecting appellant to revocation of his probation without assistance of counsel. Accordingly, we reverse the finding of violation, the resulting probation revocation, and the ensuing judgments and sentences.

We also agree with appellant’s assertion that the trial court erred in revoking appellant’s probation on the witness tampering offense when no violation of probation was charged until January 15, 1982, well after appellant’s one-year probationary period for that offense had expired. See Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1980). Accordingly, appellant cannot be held to account for any asserted violation of his probation on that offense.

In light of our decision, it is unnecessary for us to consider appellant’s remaining point on appeal other than to state that appellant is entitled to credit for jail time served as a special condition of probation should appellant’s probation be revoked on remand. See State v. Jones, 327 So.2d 18 (Fla.1976).

We REVERSE the revocation of appellant’s probation and his resulting judgments and sentences and REMAND for proceedings consistent with this opinion.

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

      . Although no charging document appears in the record on appeal, the transcript of appellant's arraignment hearing suggests that appellant’s alleged violations included leaving the county without his probation officer’s permission and shoplifting merchandise from Sears. The trial court’s order of revocation reflects that the affidavit setting forth these violations was dated January 15, 1982, and necessarily filed on or after that date.

      . As noted earlier, the trial court itself admitted that Williams would have been entitled to repre-scntation by the public defender had he made what the trial court considered a timely request.


author: RYDER, Judge.

text:
    K.P.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-483.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Jerry Hill, Public Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.

      Jim Smith, Atty. Gen., Tallahassee and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

K.P.M. Appeals from the trial court’s adjudication of delinquency. We affirm.

In December 1982, K.P.M. was charged with burglary of a dwelling. After pleading not guilty, K.P.M. sought dismissal of the charge. The facts offered during argument of the motion to dismiss reveal that Tim Koda, the son of the owners and an occupant of the home which was alleged to have been burglarized, suggested to and allowed K.P.M. and two other boys to go into the residence. Koda allegedly told K.P.M. and the others which door to enter; that the door would be secured in a manner which “wouldn’t be a problem”; and where the items to be stolen could be found. Tim Koda was not present in the home when entry was obtained.

Upon denial of the motion to dismiss, K.P.M. changed his plea to nolo conten-dere, reserving the right to appeal the order denying the motion to dismiss.

K.P.M. was adjudicated delinquent and committed to the Department of Health and Rehabilitative Services. He timely invoked the appellate jurisdiction of this court.

K.P.M. argues that he had the permission of Tim Koda to enter the home and thus had the affirmative defense of consent to the charge of burglary. The conclusion is drawn that the trial court erred in believing that a person could not be invited into a home to steal. K.P.M. further argues that Koda cannot be guilty of burglarizing his own home; therefore, K.P.M. cannot be guilty of burglarizing the home.

The state asserts, that K.P.M. did not have a good faith belief that he had valid consent to enter the residence. Furthermore, the consent was unauthorized. The state concludes that the entry, based on unauthorized consent, amounts to no more than an unauthorized entry; thus, the motion to dismiss was properly denied.

The specific issue presented does not appear to have been decided in Florida. However, there exist cases which are helpful in treating the issue.

In Damico v. State, 153 Fla. 850, 16 So.2d 43 (1943), an officer and the principal stockholder of a corporation plotted with Damico to remove jewelry from the corporation’s safe. Proceeds from an anticipated reward were to be split by the two. The stockholder left the safe unlocked and enabled Damico to commit the crime. Damico was ultimately convicted of breaking and entering with intent to commit a felony. The Florida Supreme Court affirmed the conviction finding that the corporate officer had no legal or moral right to consent to the crime.

Similarly, Tim Koda had no legal or moral right to consent to K.P.M.’s entry into his family’s home for the purpose of stealing property which did not belong to Tim. The consent of Tim Koda was unauthorized and inoperative.

Taking into account the unauthorized nature of the consent, we must look at the situation from the perspective of K.P.M. He agreed to enter the home and take the property. He entered the house with a felonious intent. As K.P.M.’s counsel indicated to the court: “There’s no question they’re guilty of grand theft.”

K.P.M. asserts that the consent of Tim Koda prevents the state from charging K.P.M. with burglary. We disagree. K.P.M. cannot rely on Koda’s consent as a shield; K.P.M. could not reasonably, and in good faith, believe that Tim had the authority to permit K.P.M. to enter the residence for the purpose of stealing the valuables of others. See State v. Tolley, 30 N.C.App. 213, 226 S.E.2d 672, cert. denied, 291 N.C. 178, 229 S.E.2d 691 (1976). See also State v. Ortiz, 92 N.M. 166, 584 P.2d 1306 (Ct.App.1978).

As Koda’s consent was unauthorized and K.P.M. could not reason-,, ably rely on that consent to justify his entry into the home to steal the property, there is no merit to the contention that the trial court erred by not dismissing the charge. While K.P.M. is correct in asserting that consent is an affirmative defense to a charge of burglary, State v. Hicks, 421 So.2d 510 (Fla.1982), under the facts of this case, the unauthorized consent will not operate to support dismissal of the burglary charge.

We also note that K.P.M.’s reliance on McEver v. State, 352 So.2d 1213 (Fla. 2d DCA 1977), cert, denied, 364 So.2d 888 (Fla.1978), is misplaced. Dicta in McEver will not control the disposition of the case sub judice. Factual differences between McEver and this case also undermine K.P. M.’s reliance thereon.

As K.P.M. pleaded nolo contendere reserving the right to appeal the trial court’s denial of his motion to dismiss, and we affirm the denial of the motion to dismiss, we consequently affirm the trial court’s adjudication of delinquency.

AFFIRMED.

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


text:
    ARABI HOMES, INC., Appellant, v. Henry BACHRACH; Treetops of Naples Second Development Corporation; Bruce Mumm; Judith Davis; Harry Roeder; Evelyn Mumm; Naples Construction Corporation; Wilson, Miller, Barton, Soll & Peak, Inc.; Brisson Enterprises, Inc.; Wayson Underground Utilities, Inc.; Imperial River Landscaping, Inc.; and Treetops of Naples Development Corporation, Appellees.
    No. 83-1540.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.

      Gary A. Robinson, Bonita Springs, for appellant.
    David L. Dawson of Bond, Schoeneck & King, Naples, for appellee Henry Ba-chrach.
   GRIMES, Judge.

This appeal involves the propriety of a final summary judgment of mortgage foreclosure in favor of Henry Bachrach which eliminated a mechanic’s lien claim by Arabi Homes, Inc.

Bachrach sued to foreclose a mortgage executed by Treetops of Naples Development Corporation. Arabi was joined as a defendant because of a mechanic’s lien filed prior in time to the recording of Ba-chrach’s mortgage. Arabi filed an affirmative defense predicated on its mechanic’s lien and a counterclaim to foreclose the lien. Arabi alleged that Treetops owed it $31,932 on a “contract for materials and services” which was attached to its pleadings as a composite exhibit. The composite exhibit consisted of several invoices reflecting the sale of a modular condominium unit, the sale of overhead cabinets and marble lavatories, and the furnishing of labor for erection of the modular unit. Ba-chrach filed a motion to strike the affirmative defense and to dismiss the counterclaim upon several grounds, including the assertion that Arabi had failed to deliver the contractor’s affidavit required by section 713.06(3)(d)l, Florida Statutes (1981). Bachrach later filed a motion for summary judgment against all defendants.

At the hearing on the motions, Ba-chrach’s attorney argued that he was entitled to summary judgment because Arabi’s pleadings reflected that Arabi was a contractor and the pleadings contained no allegation of the delivery of a contractor’s affidavit. At this point, Arabi's attorney futilely argued that Arabi was not required to deliver a contractor’s affidavit because it was really a materialman. The court struck Arabi’s affirmative defense, dismissed Arabi’s counterclaim and entered summary judgment for Bachrach against all defendants.

Arabi’s pleadings seem to allege a single contract to furnish and erect a modular condominium unit and to furnish certain accessories. As such, Arabi would constitute a contractor under the Mechanics’ Lien Law, because one who performs installation labor cannot be a materialman. § 713.01(11), Fla.Stat. (1981). Therefore, the court properly struck the affirmative defense and counterclaim for failure to allege the delivery of a contractor’s affidavit. Falovitch v. Gunn & Gunn Constr. Co., 348 So.2d 560 (Fla. 3d DCA 1977).

On the other hand, the invoices attached to Arabi’s pleadings suggest that there may have been separate contracts. The labor invoice and each material invoice were dated at different times and none of them referred to each other. Obviously, Arabi cannot prevail if it entered into a single contract for materials and erection and simply rendered separate billings on a periodic basis. However, the file reflects the possibility that Arabi might succeed as a materialman on its claim for the cost of the modular unit and accessories.

We cannot unduly fault Arabi for failing to file affidavits to bolster its claim as a materialman because Bachrach did not include in its motion for summary judgment the contention that Arabi had failed to deliver the contractor’s affidavit. See Fla.R.Civ.P. 1.510(c). The entry of a summary judgment against Arabi was at least premature. Since Bachrach asserts that the summary judgment was entered against Arabi solely upon the basis of its failure to deliver a contractor’s affidavit and only addresses that issue, we do not reach the other points discussed in Arabi’s brief.

We reverse the summary judgment as it relates to Arabi. We affirm the striking of the affirmative defense and the counterclaim but direct that Arabi shall be given a reasonable time within which to file amended pleadings.

BOARDMAN and DANAHY, JJ., concur.


author: BOARDMAN, Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Jessie CISNEROS, Jr., Appellee.
    No. 83-1586.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Geraldyne H. Carlton of Carlton & Carlton, Lakeland, for appellant.
    No Appearance for appellee.
   BOARDMAN, Judge.

The Florida Department of Health and Rehabilitative Services appeals the trial court’s order awarding attorney’s fees to Jessie Cisneros, Jr., the successful defendant in a paternity action brought by the department on behalf of a mother receiving public assistance for her dependent child.

The record establishes that the department initiated this action in discharge of its statutory obligation under section 409.2561 and section 409.2564, Florida Statutes (1981), in good faith reliance upon information furnished by the mother in both her application for public assistance and paternity questionnaire. Although the mother reasserted her allegations in sworn responses to defense interrogatories, Cisne-ros was ultimately absolved from responsibility when blood grouping examinations excluded him as a possible biological father of the child. The trial court subsequently rendered judgment for Cisneros and granted his motion to tax $300 in attorney’s fees against the department and the mother.

While we can appreciate the trial court’s desire to relieve Cisneros of the cost of his defense, we find no statutory basis for an award of attorney’s fees under the facts presented. As the department correctly asserts, neither section 57.105 nor section 742.031, Florida Statutes (1981), supports the trial court’s award. This action was not “ ‘so clearly devoid of merit both on the facts and the law as to be completely untenable,’ ” and thus subject to an award of attorney’s fees under section 57.105, Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla.1982) (quoting Allen v. Estate of Dutton, 384 So.2d 171, 175 (Fla. 5th DCA 1980)), nor was Cisneros a party entitled to receive attorney’s fees under section 742.031. See Cain v. Sims, 396 So.2d 234 (Fla. 1st DCA 1981) (award of attorney’s fees to defendant in paternity action reversed; chapter 742, Florida Statutes (1979), upheld against defendant’s due process and equal protection attack.)

Accordingly, we REVERSE the trial court’s order.

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