author: MILLS, Judge.

text:
    UNITED PARCEL SERVICE, INC., Appellant, v. STATE of Florida, OFFICE OF THE COMPTROLLER, Appellee.
    No. AS-390.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.

      Kenneth R. Hart of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Joseph C. Melli-champ, III, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

United Parcel Service (U.P.S.) appeals from the Comptroller’s final order that determined which U.P.S. vehicles were subject to the partial exemption provided by Section 212.08(9), Florida Statutes (1979), established the ratio formula to be used in computing the use and sales tax due on the vehicles under Section 212.08(9) and denied U.P.S.’s claim for a sales tax refund. We reverse.

U.P.S. operates in Florida and is a carrier certified by the Interstate Commerce Commission. The parties agree that all U.P.S. vehicles operate in interstate commerce. U.P.S. has vehicles which travel only in Florida, travel in Florida and other states, and travel only in other states.

On 25 October 1979, pursuant to Section 215.26, Florida Statutes, (1979) U.P.S. filed two refund claims with the Department of Revenue seeking refunds for sales and use taxes paid from 25 October 1976 to the time of filing the claims. The basis of the refund claims was that U.P.S. had mistakenly paid the full use taxes on vehicles and parts brought into and used in Florida and the full sales taxes on parts purchased in Florida when, in fact, U.P.S. was entitled to the partial exemption provided by Section 212.08(9), Florida Statutes. The total estimated claim was for $489,815, but U.P.S. and the Department of Revenue agreed to determine the exact amount when the applicability of Section 212.08(9) was determined.

The Comptroller issued a Notice of Intent to Deny the refund claims on the ground that they included claims for refunds on vehicles involved solely in intrastate commerce. U.P.S. petitioned for a formal hearing under the Administrative Procedure Act. The Comptroller then made the additional assertion that U.P.S. was precluded under the rationale of Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981), from receiving a sales tax refund because it did not file dealer certificates at the time of purchase as required by Florida Administrative Code Rule 12A-1.64(5)(a).

Based on a Stipulation of Facts, the hearing officer issued a Recommended Order finding, among other things, that (1) all U.P.S. vehicles used in Florida are entitled to the partial exemption; (2) the ratio used to determine the amount of the exemption should be the ratio of total Florida mileage of all U.P.S. vehicles to the total mileage of all U.P.S. vehicles with at least some Florida mileage; and (3) it was not necessary to reach the issue of the applicability of Department of Revenue v. Anderson.

U.P.S. and the Comptroller filed exceptions to the Recommended Order. The Comptroller then filed his Proposed Recommended Order which rejected the hearing officer’s determination that all U.P.S. vehicles used in Florida are entitled to the partial exemption, concluding that only U.P.S. vehicles with both Florida and non-Florida mileage were so entitled. The Comptroller also rejected the hearing officer’s formulation of the ratio used in calculating the exemption, concluding that it should be the ratio of the total Florida mileage of those vehicles with both Florida and non-Florida mileage to the total mileage of those vehicles with both Florida and non-Florida mileage. The Comptroller also took the position that U.P.S. was precluded under the Anderson rationale from a sales tax refund because it did not file dealer certificates at the time of purchase.

The Comptroller issued a Final Order adopting the hearing officer’s findings of fact but adopting the conclusions of law from his own Proposed Recommended Order.

U.P.S. contends that the partial exemption of Section 212.08(9) applies to all vehicles and parts thereof in interstate commerce and purchased or used in Florida; that the ratio to be applied is the total miles traveled in Florida by all U.P.S. vehicles in Florida, whether those vehicles travel outside Florida at times or only in Florida, to the total mileage of all U.P.S. vehicles wherever situated and regardless of whether those vehicles have ever been in Florida; and that the Anderson case is not applicable to this case.

Section 212.08(9) provides that “vehicles which are licensed as common carriers by the Interstate Commerce Commission ... and parts thereof used to transport persons or property in interstate or foreign commerce are subject to tax imposed in this chapter only to the extent provided herein.” The Comptroller agrees with U.P.S. that U.P.S. vehicles operating solely within Florida are used in interstate commerce. U.P.S. is also registered as a common carrier with the I.C.C. Clearly, U.P.S. vehicles operating in Florida, whether or not they ever operate outside Florida, are subject to the partial exemption provided by Section 212.08(9). It was therefore error for the Comptroller to allow the partial exemption on only those vehicles traveling in and out of Florida.

Section 212.08(9) further states that “[t]he basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier....” The Comptroller contends that this means miles traveled by those vehicles with both Florida and non-Florida mileage. U.P.S. says “mileage traveled by the carrier” means mileage traveled by all vehicles of the carrier wherever situated. The hearing officer concluded that the phrase meant miles traveled by the carrier’s vehicles with at least some Florida mileage. We agree with the hearing officer.

The only case considering the construction of this provision is Tropical Shipping & Const. Co., Ltd. v. Askew, 364 So.2d 433 (Fla.1978), where the Supreme Court said:

The Department of Revenue, however, has applied the statute by constructing a ratio in which the numerator is the miles traveled in Florida and the denominator is the total miles traveled by the vehicle. This is the correct application. (Emphasis added)

This would appear to mean that the ratio should be formulated by aggregating the mileage of only those vehicles with both Florida and non-Florida mileage. Yet the court was not specifically considering which vehicles of the carrier should be included in the ratio formulation, only whether certain mileage of vehicles traveling both in and out of Florida should be included in the ratio formulation.

U.P.S.’s construction appears to comport with a literal reading of the statute, but it is hard to see why the legislature would want to include all the mileage from U.P.S. delivery vans in Minnesota, for instance, in constructing a formula for taxation of vehicles used in Florida. It is not constitutionally required. Also, exemption provisions are to be construed against the taxpayer.

The hearing officer’s finding which is most logical is to figure the ratio based on the mileage of those vehicles which are clearly eligible for the partial exemption, i.e., those vehicles with only Florida mileage and those vehicles with both Florida and non-Florida mileage. The numerator would be the total Florida mileage of all U.P.S. vehicles and the denominator would be the total mileage of those U.P.S. vehicles with at least some Florida mileage. Even the mileage of those vehicles with only Florida mileage should be included in the denominator.

U.P.S. admits it did not comply with Rule 12A-1.64(5)(a), but asserts that this should not be fatal to its refund claim. The Comptroller says it is fatal because in Anderson supra, the Supreme Court held that failure to obtain a certificate under the sale for resale sales tax exemption precluded assertion of that exemption as a defense to a Department of Revenue assessment.

Anderson did not deal with a refund claim under Section 215.26(2). Neither did it deal with the partial exemption of Section 212.08(9). This is not a situation, as in Anderson, where a taxpayer is attempting to avoid paying taxes. Here, the taxes were actually paid under the erroneous assumption that U.P.S. was not entitled to the partial exemption. To deny a refund because of failure to comply with the administrative rule in such a situation would render Section 215.26(2) meaningless as it applies to Section 212.08(9).

We reverse the final order on all these issues and remand for entry of an order consistent with this decision.

THOMPSON and WIGGINTON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Margaret PETTY-EIFERT and Janice Heller, Appellees.
    No. AT-113.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.

      Claire D. Dryfuss, Asst. Gen. Counsel, Tallahassee, for appellant.
    Thomas G. Sherman of Demeo & Sherman, P.A., Coral Gables, for appellee.
   MILLS, Judge.

In this administrative appeal, we are asked to determine whether Rules 10D-36.-22(l)(a) and 10D-36.22(l)(d), Florida Administrative Code, are an invalid exercise of delegated legislative authority. We affirm the order of the hearing officer holding the rules invalid.

In June of 1982, Petty-Eifert and Heller applied to the Department of Health and Rehabilitative Services (HRS) for a license to practice midwifery pursuant to Chapter 485, Florida Statutes (1981). However, on 1 July 1982, Chapter 82-99, Laws of Florida [Chapter 467, Florida Statutes (Supp. 1982) ], became effective. This act radically altered the requirements for obtaining a license to practice midwifery. For purposes of this appeal, Petty-Eifert and Heller have conceded that they do not meet these new qualifications.

Applying the provisions of Chapter 485, Florida Statutes (1981), HRS denied the applications in September of 1982.

Petty-Eifert’s application was denied on the basis of Rule 10D-36.22(l)(d) in that she failed to receive a favorable recommendation from the county medical director and did not satisfactorily “complete” several birth certificate forms. It was further denied on the basis of Rule 10D-36.22(l)(a) in that two of the births were not delivered in the hospital and that she therefore had not attended 15 cases of labor during the lying-in period as required by the statute and rule,

Heller’s application was denied because she had not attended 15 cases of labor within one year as required by Rule 10D-36.22(l)(d) and because she had incompetently administered oxygen to a patient in violation of Rule 10D-36.27.

Following the denial of their applications, Petty-Eifert and Heller filed petitions with the Division of Administrative Hearings seeking to have the above rules declared an invalid exercise of delegated legislative authority. Section 120.56, Florida Statutes (1981). The hearing officer agreed that the rules were invalid.

On appeal, HRS first contends that Chapter 467, Florida Statutes (Supp.1982), should have been applied to these applications rather than Chapter 485, Florida Statutes (1981), and the rules promulgated thereunder. We agree with the hearing officer that, under the facts and circumstances of this case, these applicants were entitled to have the law applied as it existed at the time they filed their applications. Goldstein v. Sweeny, 42 So.2d 367 (Fla.1949); Attwood v. State, 53 So.2d 101 (Fla.1951); but see Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 1981).

Further, we agree with the hearing officer that the challenged rules are an invalid exercise of delegated legislative authority. In State, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980), this Court held that Rule 10D-36.22(l)(a)2, requiring a midwife’s license applicant to disclose the names of patients whom she attended while the patients were in labor, was an invalid exercise of delegated legislative authority. Similarly, Rule 10D-36.-22(l)(a) is invalid for requiring the applicant to have attended 15 cases of labor within one year. There is no such one-year requirement in Section 485.031(4)(b), Florida Statutes (1981). This portion of the rule is further defective because it fails to provide when the one-year period must have occurred. Presumably, it may have occurred then, twenty, or even thirty years before the date of application. Furthermore, even the rule does not require that these cases of labor be attended while the patient is in a hospital. Therefore, HRS wrongly refused to recognize two of Petty-Eifert’s cases of childbirth.

Rule 10D-36.22(l)(d) is invalid for requiring the applicant to secure a favorable recommendation from the county medical director. There is no such requirement in Section 485.031(2), Florida Statutes (1981). Likewise, there is no statutory basis for the rule’s requirement that an applicant be able to accurately “complete” standard birth certificate forms. Section 485.-031(2) requires only that the applicant be able to fill out the birth certificates legibly.

Finally, HRS has not contested the hearing officer’s finding that Rule 10D-36.-27 is an invalid exercise of delegated legislative authority. By failing to argue this issue on appeal, HRS has waived the right to contest the validity of this rule.

The order appealed is affirmed.

THOMPSON and WIGGINTON, JJ., concur.


author: BASKIN, Judge. NESBITT, Judge

text:
    DADE COUNTY SCHOOL BOARD and Leonard Britton; United Teachers of Dade, Appellants, v. The MIAMI HERALD PUBLISHING COMPANY, A DIVISION OF KNIGHT-RIDDER NEWSPAPER, INC., a Florida corporation, and Mark Silva, Appellees.
    Nos. 82-2079, 82-2140.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.

      Frank A. Howard, Jr., Du Fresne & Bradley and Sarah Lea Tobocman, Miami, for appellants.
    Paul & Thomson and Parker Thomson & Franklin G. Burt and Samuel A. Terilli, Richard J. Ovelmen, Miami, for appellees.
    Steven A. Been, Tallahassee, for Florida Educ. Ass’n/United as amicus curiae.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

The Dade County School Board and Leonard Britton, its superintendent, appeal from a peremptory writ of Mandamus ordering that the school board make accessible to the Miami Herald records contained in the personnel file of deceased teacher Carl Brown. Although counsel for the school board presented an impressive plai-doyer, we are unable to agree with the board’s position. We affirm the trial court’s order, holding that the requested records are subject to disclosure under chapter 119, Florida Statutes (1981) and that no lawful exemption impinged on Florida’s broad public policy of access to government documents.

Carl Brown had served as a civics and history teacher in the Dade County school system for more than twenty years when, in December 1981, reports of Brown’s apparent inability to teach effectively caused his principal to refer him for consultation with Dade County’s employee assistance program. After the consultation, Brown underwent examination by a school board psychiatrist. A month later, the school board removed him from his teaching duties and placed him on medical leave to enable him to obtain additional treatment. In August, 1982, the psychiatrist who had been treating Brown found no indications of violent behavior or aggressiveness and stated that Brown displayed no interest in harming anyone. Ironically, two days after the psychiatrist made this diagnosis, Brown, in a rage following an argument over a lawn mower repair bill, returned to the repair shop and killed eight people with a shotgun. As Brown was leaving the scene on a bicycle, he was pursued and killed by an outraged eyewitness.

Following this series of events the Herald published a number of articles about Brown. The articles contained interviews with Brown’s former school associates, school administrators, the school board’s psychiatrist, friends, family and others. On August 26, 1982, alleging a journalistic “investigation into the murders allegedly committed by Brown and in inquiry into the manner in which the School Board conducts its public duties regarding the selection, monitoring, and evaluation of school teachers”, the Miami Herald and Herald reporter Mark Silva formally requested Dade County School Board Superintendent Leonard Britton to permit the inspection of Brown’s personnel file. They cited chapter 119, Florida Statutes (1981) and former section 231.29(7), Florida Statutes (1982) as authority for their right of access to these “public records.” Superintendent Britton denied their request. Britton interpreted the 1982 changes in section 231 as the legislature’s expression of intent to protect the rights of public school employees and their families by shielding personnel files from public inspection. Britton had determined that the 1982 administrative directives regarding access to public school personnel files under former section 231.29(7) precluded public inspection of the files.

On August 31, 1982, in response to the school board’s denial of access to the Brown files, the Miami Herald filed a petition for writ of mandamus, seeking to compel the school board to permit inspection of the records. The trial court granted the writ, directing the school board to disclose the Brown records to the Herald. The trial court found that Brown’s personnel file constituted a “public record” within the meaning of section 119.011(1), Florida Statutes (1981) and was not exempt from public disclosure under former section 231.29(7). Subsequent to the issuance of the trial court’s writ, the legislature enacted section 231.291 repealing section 231.29(7) and providing a completely new regulatory scheme for maintaining school employees’ personnel files. The new statute governs access to and disclosure of files and provides for the future confidentiality of specific matters contained in the personnel records.

When the new statute became effective on July 1, 1983, the Miami Herald made a public records request under its provisions. In response to this request the school board released to the Herald those portions of the Carl Brown file no longer protected by law. That disclosure rendered moot a portion of this appeal; however, the Miami Herald still seeks inspection of other material contained in the Brown file, specifically: annual employee evaluations, medical psychiatric and psychological records and payroll deduction records related to Brown’s psychological condition. The Herald asserts that the requested records should be available to enable it to educate and inform the public about the school board’s performance with regard to teacher evaluation and to shed light on the school board’s protection of students from incompetent or unstable teachers.

Before deciding questions pertaining to the right of access to the requested personnel records, we must determine which statute governs the Herald’s request. The specific issue here is whether the new law, section 231.291, Florida Statutes (1983), applies retroactively to exempt the Carl Brown records from disclosure, and if section 231.291 is non-retroactive, whether the former statute, section 231.29(7), was correctly interpreted and applied by the court below to permit disclosure.

First, we address the applicability of the recent enactment effective July 1, 1983. Section 231.291 provides in relevant part:

Section 1. Subsection (7) of section 231.29, Florida Statutes, 1982 Supplement, as amended by chapter 82-242, Laws of Florida, is hereby repealed.
Section 2. Section 231.291, Florida Statutes, is created to read:
231.291 Personnel files. — Public school system employee personnel files shall be maintained according to the following provisions:
(3)(a) Public school system employee personnel files are subject to the provisions of chapter 119, except as follows:
2. Employee evaluations prepared pursuant to s. 231.17(3), s. 231.29, s. 231.-36, or rules adopted by the State Board of Education or a local school board under the authority of said sections, shall be confidential until the end of the school year immediately following the school year during which each evaluation is made. No evaluations prepared prior to the effective date of this act shall be made public pursuant to this section.
5. Employee medical records, including psychiatric and psychological records, shall be confidential; provided, however, at any hearing relative to an employee’s competence or performance, the hearing officer or panel shall have access to such records.
Section 6. This act shall take effect July 1, 1983.

The well-settled rule of statutory construction is that in the absence of an express manifestation of legislative intent to the contrary, the presumption is against retroactive application of a statute. Seddon v. Harpster, 403 So.2d 409 (Fla.1981); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Foley v. Morris, 339 So.2d 215 (Fla.1976). See also State v. Lavazzoli, 434 So.2d 321 (Fla.1983). The new act contains no expression of retroactivity by the legislature. We agree with the Miami Herald’s assertion that the delayed inspection provision contained in subsection (3)(a)(2) of the new act is expressly non-retroactive. It states:

No evaluations prepared prior to the effective date of this act shall be made public pursuant to this section.

Thus, according to the plain language of this section, prior evaluations are expressly not subject to the regulations of the new statute. Silence in the remaining portions of the new act regarding retroactivity clearly indicates that the legislature did not intend that this section be applied retroactively. There is, furthermore, no merit in this case in the school board’s contention that retroactivity may be inferred from statutory history indicating the legislature’s intent to protect evaluations and medical records in personnel files. Whether a statute is intended to operate retroactively must be determined on the basis of the express language of the specific law. In Fleeman at 817-18, the court stated:

We can restrict the debate on a legislative “intent” for retroactivity to the floor of [the legislature], as well as avoid judicial intrusions into the domain of the legislative branch, if we insist that a declaration of retroactive application be made expressly in the legislation under review. By this means the forward or backward reach of proposed laws is irrevocably assigned in the forum best suited to determine that issue, and the judiciary is limited only to determining in appropriate cases whether the expressed retroactive application of the law collides with any overriding constitutional provision. (emphasis added)

Finding no express manifestation of retroactive intent in the application of section 231.191, we hold that the act has no retroactive effect. See Avila South Condominium Association v. Kappa Corporation, 347 So.2d 599 (Fla.1977); Fleeman.

We now determine whether the trial court correctly construed and applied the controlling statute, former section 231.-29(7), to permit access to the Brown personnel records.

In its peremptory writ of mandamus, the court found, in pertinent part:

1. The personnel file of Carl Brown is a “public record” within the meaning of Section 119.011(1), Florida Statutes (1981). Gadd v. News-Press Pub. Co., 412 So.2d 894 (Fla. 2d DCA 1982), Mills v. Doyle, 407 So.2d 348 (Fla. 4th DCA 1981).
2. As codified in the Public Records Act, it is the policy of this state that “all state, county, and municipal records shall at all times be open for public inspection by any person.” F.S. 119.01. Under the law, there are certain exemptions.
All public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1). Section 119.07(3)(a), Florida Statutes (1981).
3. Respondents maintain that the requested personnel file is exempt from disclosure pursuant to section 231.29(7) Florida Statutes (1982) which provides:
The personnel file of each (school board) employee shall be open to inspection only by the school board, the superintendent, the principal, the employee himself and such other persons as the employee or the superintendent may authorize in writing.
4. The superintendent, Leonard Brit-ton, has interpreted the statute to exclude from the category of persons eligible to inspect the records, “the press or public at large.” ... The articulated basis for denying the public access to the file is twofold: 1) to encourage the free flow of information regarding school board employees, and 2) to protect the right of privacy of employees.... Since by the very terms of the statute, neither of these rationales could apply, Britton’s restrictive interpretation must be rejected.
[T]he statute may not be read as Mr. Britton reads it, so as to exclude the public from access to the personnel files of school board employees, in every case.
7. As asserted by Petitioners, the public has a right to inspect the personnel file of Carl Brown in furtherance of a bona fide inquiry into the manner in which the School Board performs its public duty of evaluating and assigning public school teachers.
Whether this ‘right to know’ is elevated to the status of a constitutional right under the First Amendment, as Petitioners maintain, or is a matter of public policy as expressed in the Public Records Act, the right cannot be cut off by the superintendent's restrictive interpretation of FS 321.29(7) which would deny the public access to personnel files, under any circumstances.
8. This reading of the statute cannot be upheld since the legislature clearly has not declared that these records are absolutely exempt from disclosure. Indeed, the legislature has permitted their disclosure as circumstances of a given situation may warrant and has left it to the superintendent to delineate those circumstances. Whether we view Mr. Brit-ton’s position as a failure to exercise his discretion under the law, or as an arbitrary or irrational exercise of that discretion, the result is the same.
9. Mr. Britton neither questions the good faith of Petitioners’ claim nor sets forth any basis for denying access in this case. Therefore, Petitioners’ showing of need stands virtually unrebutted and there is little question but that the records must be disclosed.
10.The Court, finding that FS 231.-29(7) has been unconstitutionally applied, does not reach the question of whether the statute is unconstitutional on its face. If the statute were read so as to create in the superintendent the absolute and unfettered discretion to deny the public access to these records in every instance, there would be a need to address its facial constitutionality. However, as set forth above, the Court concludes the statute gives Mr. Britton discretion which must be, but has not here been, constitutionally exercised.
In accordance with the aforesaid, Findings of Fact and Conclusions of Law, it is hereby ORDERED AND ADJUDGED that Respondents Dade County School Board and Leonard Britton forthwith permit Petitioners, The Miami Herald Publishing Company and Mark Silva to inspect the personnel file of Carl Brown.

The trial court essentially decided that the school board failed to present a legally sufficient rationale for barring the Miami Herald from its right of access to public documents as provided by chapter 119. The school board’s reasons for exempting the personnel files from public disclosure, namely, the protection of the privacy interests of employees and the fostering of the free flow of information, were found inadequate to overcome the strong policy in favor of openness. Concurring with the trial court, we find that the school board’s action in denying disclosure to the Herald of the Carl Brown personnel file constituted an arbitrary exercise of its discretion under former section 231.29(7). See State ex rel. Roberts v. Knox, 153 Fla. 165, 14 So.2d 262 (1943) (an officer exercising administrative discretion should not act in an arbitrary or capricious manner).

Under the circumstances of this case, we hold that the trial court correctly determined that chapter 119 and former section 231.29(7) require disclosure.

Affirmed.

NESBITT, Judge

(specially concurring):

I concur in the result reached by the majority opinion, but upon an entirely different basis.

In my view, a discussion as to which law is applicable is completely unnecessary to the disposition of this cause because under either statute the subject records are not exempt from inspection. This is true because each statute by its very terms applied to the personnel files of “employees.” Carl Brown, by his death, has most assuredly ceased to be an employee of the Dade County school system. On this basis, then, I agree with the majority that the medical records and employee evaluations are open to inspection by The Miami Herald.

       See Richmond Newspapers, Inc. v. Commonwealth of Virginia, 448 U.S. 555 [100 S.Ct. 2814, 65 L.Ed.2d 973] (1980); Globe Newspaper v. Superior Court [457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248], 50 U.S.L.W. 4759 (June 23, 1982).


author: BARKDULL, Judge.

text:
    NIGERIAN AIR FORCE, a branch of the Nigerian government, Appellant, v. James VAN HISE, Appellee.
    No. 83-480.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Rehearing Denied Jan. 25, 1984.
    Finley, Kimble, Wagner, Heine, Under-berg, Manley & Casey and Steven R. Rein-inger and Mara Beth Sommers and Gregory Borgognoni, Miami, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellee.

      Before BARKDULL, NESBITT and JORGENSON, JJ.
   BARKDULL, Judge.

Some 2¾⅞ years after an adverse final judgment entered following a default, the Nigerian Air Force (hereinafter referred to as NAF) a branch of the Nigerian government, filed a motion pursuant to Civil Procedure Rule 1.540(b)(4) seeking relief from said final judgment. Upon denial of that motion, this appeal ensued.

From the record the following appears, James Van Hise (hereinafter referred to as JVH) while residing in the Federal Republic of Nigeria offered to purchase an airplane from the Nigerian Air Force. This offer was accepted, the purchase price of the airplane was paid and the plane was to be delivered in Nigeria. JVH moved to Florida and subsequently NAF, by letter dated April 14, 1977 informed JVH that because of certain improvements to the plane he would have to submit a new offer. No new offer was forthcoming and JVH instituted an action in the Circuit Court of Dade County, Florida for breach of contract. Service was purportedly made on' the NAF pursuant to the provisions of Title 28 U.S.C. § 1605.

Thereafter the trial court granted a default for failure to plea and the matter was set for jury trial as demanded in the complaint. At the time it came on to be heard before a jury, the jury demand was withdrawn and the matter was placed on a nonjury calendar without notice to the NAF and subsequently at an ex parte hearing the trial court entered a final judgment in the total amount of $121,961.65 dated March 3, 1980. On December 3, 1982 NAF moved to vacate the final judgment pursuant to Rule 1.540(b)(4) Fla.R.Civ.P. This motion was denied and this appeal ensued.

The section of Title 28 U.S.C. cited in the first footnote requires certain prerequisites before jurisdiction may be obtained over a foreign sovereign. NAF contends that the judgment was void for subject matter jurisdiction. JVH responds that even if it is a void judgment, no attack was made within a reasonable period of time and therefore the trial court should be sustained in its denial of relief, NAF having notice of the original proceeding. State v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936); Voorhies v. Barnsley, 116 Fla. 191, 156 So. 234 (1934); Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927); Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969).

The federal congress with the adoption of Section 1602 et seq, Title 28 U.S.C. code has established a uniform procedure for bringing actions against foreign sovereigns which are exceptions to general immunity from civil processes- that are enjoyed by foreign sovereigns in this country. Only when a domestic litigant can meet the conditions set forth in the federal statutes may he proceed with civil litigation in either the state or federal courts. Therefore, our first inquiry must be under the facts recited above, what acts of NAF would meet the conditions prescribed in the federal statutes which would constitute an exception to jurisdictional immunity and subject them to domestic jurisdiction in the courts of Florida.

JVH candidly admits that his sole claim against the foreign sovereign must rise or fall on the letter addressed to him in the State of Florida urging that this construed a breach of contract, which would be commercial activity having a direct effect in the United States. It is plain from the legislative history of the Foreign Sovereign Immunity Act (FSIA) that due process notions of minimum contacts have been incorporated in the act. Wauhesha Engine Division, Dresser Americas, Inc. v. Banco Nacional De Fomento Cooperative, 485 F.Supp. 490 (E.D.Wis.1980); Carey v. National Oil Corp., 453 F.Supp. 1097 (S.D.N.Y.1978). The letter received by JVH requesting a new offer for purchase of the airplane sought new negotiations between the parties for purchase of the plane and as such it did not constitute an activity having a direct effect in the market place of the United States. East Europe Domestic International Sales Corp. v. Terra, 467 F.Supp. 383 (S.D.N.Y.1979); See Chicago Bridge & Iron Company v. Islamic Republic of Iran, 506 F.Supp. 981 (N.D.Ill.1980). Furthermore, the fact that the purported injury took place in the United States only because the plaintiff is domiciled or doing business here does not constitute contact for due process purposes. East Europe Domestic International Sales Corp. v. Terra, supra.

Therefore, we hold that the letter relied upon herein failed to constitute a direct effect on the United States as required by Title 28 U.S.C. Section 1605 and that the plaintiff has failed to prove the minimum contacts necessary to constitute an exception to the NAF’s claim of sovereign immunity.

In passing we note that the waiver of jury trial did not conform to the rules of court or the authority interpreting them. However, we do not think that this failure to comply with the rules makés the judgment void, but we think it would be merely voidable and therefore is time barred because of the failure to raise it within one year in accordance with the provisions of Rule 1.540(b)(4) Florida Rules of Civil Procedure. We also have serious doubt whether a claim against a foreign sovereign may be maintained in a trial court before a jury. There is good public policy for the Congress in establishing certain jurisdiction over foreign sovereigns in civil proceedings to limiting these proceedings to matters that could be considered nonjury, it being obvious that as to certain foreign sovereigns, juries might be prejudiced in their responsibilities. We have been cited to no case that indicates that juries will be permitted in Title 28 U.S.C. § 1605 actions and believe that the reasonable interpretations of the federal code are as outlined above. Therefore no error occurred in trying this cause nonjury because a jury was not validly demanded in the first instance.

Based on the foregoing reasonings we must reverse the trial court and remand the cause for purposes of vacating the final judgment and for entry of an order dismissing the original complaint for lack of jurisdiction because of the claim of sovereign immunity.

Reversed and remanded with directions.

      . "§ 1605. General exceptions to the jurisdictional immunity of a foreign state
      (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case — "
      "(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;”

      . "The Defendant, Nigerian Air Force, by and through its undersigned counsel, respectfully moves pursuant to Rule 1.540(b), Fla.Rules of Civil Procedure to vacate and grant relief from the default judgment entered against it on March 5, 1980. In support of this Motion, the Defendant states:
      BACKGROUND
      1. On April 26, 1978, the Plaintiff James Van Hise ("Van Hise") filed a Complaint naming the Nigerian Air Force ("NAF") as a party defendant. Van Hise alleged that the NAF had breached a contract to sell a Piper Aztec aircraft to Van Hise. The alleged basis for jurisdiction was Sections 1602 and 1608 of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, 1608 ("FSIA”). The Complaint also contained a demand for trial by jury.
      2. The contract purchase price for the aircraft was Two Thousand Seven Hundred Fifty Naira (2,750.00N). The purchase price was equivalent to approximately Four Thousand Four Hundred U.S. Dollars ($4,400.00).
      3. On October 10, 1979, Van Hise filed a Motion for Default which was granted on the same date.
      4. On February 4, 1980, this Court entered an order removing the case from the jury calendar and setting it for non-jury trial on February 28, 1980.
      5. After an ex -parte hearing conducted on February 28, 1980, a transcript of said hearing being attached hereto as Exhibit "A”, this Court entered judgment in favor of Van Hise in the amount of One Hundred Twenty One Thousand Nine Hundred Sixteen Dollars and fifteen cents ($121,916.15). On December 30, 1980, this Court granted Van Hise’s Motion for Attachment and Execution.
      GROUNDS FOR RELIEF FROM JUDGMENT A. Lack of Subject Matter and Personal Jurisdiction

      6. The entire transaction which is the subject of Van Hise’s complaint took place in Nigeria. The alleged contract was negotiated and executed in Nigeria and delivery of the aircraft was to occur in Nigeria. Van Hise tendered the purchase price for the aircraft directly to the Central Bank of Nigeria. During the years 1969 and 1972 Van Hise was a resident of Nigeria where he was employed as a flight instructor for DC3 and DC4 aircraft. During this period of time Van Hise was accorded officers’ status in the NAF. The transaction which is the subject of the Complaint arose from said relationship.
      7. As established in the Affidavit of Wing Commander Abisogun Johnson which is attached hereto as Exhibit “3" and made a part hereof, the NAF has had no contacts with the State of Florida. The NAF has never maintained any personnel or agents in Florida and aircraft owned by the NAF have never used airport facilities located in Florida.
      8.The judgment obtained against NAF is void for lack of subject matter and personal jurisdiction, particularly:
      (a) Van Hise failed to obtain proper service over NAF pursuant to § 1608(a), FSIA;
      (b) The FSIA and the due process clause of the United States Constitution require the Defendant to have certain minimum contacts with the forum state before a court may properly exercise its personal jurisdiction over a non-resident defendant. Moreover, under § 48.193, Florida Statutes (the long-arm provisions), Florida courts require a greater showing of contacts between the defendant and the state than that mandated by the United States Constitution and federal law;
      (c) The complaint fails to allege a sufficient basis for this court’s exercise of personal jurisdiction over NAF in that Florida law requires allegations of specific facts subjecting the defendant to the jurisdiction of Florida courts; and
      (d) There is no evidence in the record to support the court’s finding of an exception under 28 U.S.C. § 1605 to NAF’s immunity from the jurisdiction of this Court.
      B. Unlawful Withdrawal of Jury Trial

      9. The judgment is also void on grounds that the case was tried nonjury in that there was a demand in the Complaint for trial by jury and the Defendant never waived its right to trial by jury.
      C. Additional Grounds

      10. The transcript of the hearing clearly establishes that the evidence presented the Court on an ex parte basis was legally and factually insufficient and failed to substantiate the amount of damages awarded to the Plaintiff.
      11. Van Hise failed to sufficiently establish his claim and right to relief within the meaning of
      28 U.S.C. § 1608(e) so as to entitle him to a judgment by default.
      12. Based on the grounds set forth in paragraph 6, supra, the transaction is governed by the law of Nigeria; however, there is no indication in the record as to whether Nigerian law was considered by the court in reaching its determination.
      WHEREFORE, for all the foregoing reasons Defendant NAF requests this Court to find that the judgment against it is void and enter and order vacating it and granting NAF relief from the judgment.

      . Air Unlimited, Inc., v. Volare Air, Inc., 428 So.2d 294 (Fla. 3d DCA 1983); Jayre, Inc. v. Wachovia Bank & Trust Co., 420 So.2d 937 (Fla. 3d DCA 1982), Rule 1.430(d) Fla.R.Civ.P.


author: PER CURIAM.

text:
    DEPARTMENT OF TRANSPORTATION, State of Florida, Appellant, v. GENERAL PORTLAND, INC., Appellee.
    No. 83-833.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.

      Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., for appellant.
    George, Hartz, Burt & Lundeen and Clinton Flagg, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

On September 18, 1981, Robert Dean Rose commenced an action against the Department of Transportation (hereafter DOT) by serving a complaint on the department. Also named in the complaint as a defendant was General Portland, Inc. The suit was based upon the alleged negligence of the defendants which resulted in a vehicular accident, injuring Rose.

On October 19, 1981, DOT responded to the complaint by motion for change of venue on the ground that venue did not lie in Dade County for the claim against DOT due to the agency’s common law venue privilege. Before the court ruled on the motion, plaintiff Rose voluntarily dismissed DOT as a party to the action.

On September 10, 1982, DOT received a summons and third-party complaint from General Portland, naming DOT as a third-party defendant in the action and seeking contribution. DOT responded to the third-party complaint by serving a motion to dismiss and/or for change of venue, again claiming its common law venue privilege. On March 3, 1983, a hearing was held on the motion. On March 11, 1983, the court denied the request for change of venue. This appeal followed.

The sole point raised on appeal is whether the trial court erred in denying appellant Department of Transportation’s motion for change of venue. We have carefully considered the appellant’s point in the light of the record, briefs and arguments of counsel and have concluded that the trial court was correct in denying the motion for change of venue from Dade to Leon County.

Section 768.28(1), Florida Statutes (1981), provides, inter alia, that an action may be brought against a state agency in the county where the accident took place. Section 768.28(14), Florida Statutes (1981), provides that section 768.28 shall apply only to causes of action which accrue on or after October 1, 1981. Florida Department of Transportation v. Lopez, 415 So.2d 116 (Fla. 3d DCA 1982). Venue is therefore proper in Dade County, as this action for contribution did not accrue until subsequent to October 1, 1981. It is the date the action accrued against appellant that is controlling in this case, not the date of the incident giving rise to the claims, as is urged by appellant. A claim for contribution does not accrue until a judgment has been entered against the defendant/third-party plaintiff, or until the defendant has discharged the common liability. Showell Industries, Inc. v. Holmes County, 409 So.2d 78 (Fla. 1st DCA 1982); section 768.31, Florida Statutes (1981) (Uniform Contribution Among Tortfeasors Act), and section 768.31(4)(a, d) thereof. Sub judice, it is apparent from the face of the third-party complaint that at the time of its filing in September, 1982, General Portland had neither had judgment entered against it, nor had it yet discharged the common liability. Thus, although General Portland clearly had the right to bring a third-party action for contribution against DOT when it did so, see New Hampshire Insurance Co. v. Petrik, 343 So.2d 48 (Fla. 1st DCA 1977); Nationwide Mutual Insurance Co. v. Fonts, 323 So.2d 593 (Fla. 2d DCA 1975); section 768.31(4)(a, d), Florida Statutes, the cause of action for contribution had not yet accrued, for purposes of section 768.28(14), at the time the third-party complaint was filed, which was well after the effective date of section 768.28.

Since section 768.28 applied to General Portland’s third-party action for contribution against DOT, the trial court was correct in ruling that Dade County was a proper venue for this action. The order appealed is, accordingly, affirmed.

Affirmed.

      . The privilege allowed the state, its agencies, political subdivisions and public officers to be sued only in the county where they maintained their principal headquarters. Henderson v. Gay, 49 So.2d 325 (Fla.1950); Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948).

      . ... Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued.


author: SCHWARTZ, Chief Judge.

text:
    Jose Bernardo GARCIA, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellees.
    No. 83-1600.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Adolfo Z. Aguila-Rojas and Carlos A. Santos, II, Miami, for appellant.
    Joseph W. Lawrence, II, Tallahassee, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

This court is without jurisdiction to consider the merits of the April 21, 1983 revocation of the appellant’s medical license by the Board of Medical Examiners because the notice of appeal was not filed until June 23,1983. While this was subsequent to the denial, after hearing, of his request for reconsideration, that proceeding did not have the effect of tolling the 30 day appellate period because it was not specifically authorized by statute or rule. Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137 (Fla. 1st DCA 1981); Systems Management Associates, Inc. v. State Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1980); compare, Department of Corrections v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983) (agency rule authorized rehearing)

No other error is demonstrated.

Affirmed.

      1. By way of dictum, we would add that the revocation hearing seems to have been conducted in full compliance with Sec. 120.57(2), Fla. Stat. (1981), to the application of which the appellant freely agreed. See City of Punta Gorda v. Public Employees Relations Commission, 358 So.2d 81 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 710 (Fla.1978).


author: DANIEL S. PEARSON, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Optimio ALVAREZ, Appellee.
    No. 83-1602.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Rehearing Denied Feb. 1, 1984.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Rniskern and Bradford A. Thomas, Miami, for appellant.
    Jerome S. Reisman, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the summary judgment entered in favor of Alvarez upon a holding that the uncorroborated testimony of the president of the insurance agency concerning the agency’s standard and unwavering practice in taking applications for automobile insurance raised a genuine issue of material fact to be resolved by the jury as to whether the practice was followed at the time Alvarez applied for insurance.

In February 1980, Alvarez applied for automobile insurance at Almerico Insurance Agency, the insurance policy ultimately being issued by the appellant, Lumber-mens Mutual Casualty Company. The policy contained an $8,000 deductible under the required personal injury protection coverage. During the term of the policy, Alvarez was allegedly involved in an automobile accident in which he was injured. When Lumbermens refused to pay Alvarez for any damages below the deductible amount, he sued, claiming, inter alia, that the personal injury protection deductible was invalid because the insurer failed to satisfy the duty imposed upon it by Section 627.-739, Florida Statutes (1979), to inform Alvarez that he could not avail himself of the deductible unless he had other applicable coverage. See Lumbermens Mutual Casualty Co. v. Herrera, 439 So.2d 301 (Fla. 3d DCA 1983); Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28 (Fla. 3d DCA 1981), aff'd, 447 So.2d 1337 (Fla.1983).

Alvarez moved for summary judgment on liability, relying on his sworn unequivocal denial that the person who took his application for insurance explained to him that the deductible was available only if he had other coverage. Lumbermens countered with the deposition testimony of Mr. Almerico, the president of the insurance agency, which reflected that it was the agency’s standard practice and procedure in February 1980 (a) to ask all applicants if they have other insurance coverage, (b) to inform the applicant that he could elect an appropriate deductible if the applicant stated that he has such coverage, and (c) to inform the applicant that the agency would not procure a policy containing a deductible if the applicant stated that he has no collateral insurance coverage. The trial court entered summary judgment for Alvarez, implicitly determining that Almerico’s testimony was insufficient to present an issue of fact as to whether Alvarez was given the advice which Section 627.739 requires, since Almerico was unable to state that the standard practice and procedure of the agency was followed in the particular instance when Alvarez applied for insurance.

We are of the view that the rule first announced in Jarrard v. Associates Discount Cory., 99 So.2d 272, 278 (Fla.1957), that “in order to constitute proof of performance of an act on a specific occasion, it is not sufficient merely to prove the habit, practice or custom, but there must also be some proof that the practice was followed in the particular instance in issue, and the evidence should show performance of the practice by those then charged with it,” if not abrogated sub silentio in Brown v. Giffen Industries, Inc., 281 So.2d 897, 900 (Fla.1973) (a general presumption exists that the ordinary course of business or conduct in respect to mailing was followed in a particular case absent a contrary showing), was effectively done away with in 1979 with the enactment of Section 90.406, Florida Statutes (1979). That section, applicable here, provides:

“Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.”

The impact of Section 90.406 on the case at hand is that Almerico’s testimony as to the routine practice of the insurance agency is not to be disregarded, as it was below, merely because it is uncorroborated and indeed is contradicted by Alvarez’s “eyewitness” denial; instead, Almerico’s testimony is to be weighed and considered by the trier of fact as any other type of evidence. Alvarez’s direct proof is not superi- or, as a matter of law, to Almerico’s circumstantial proof. While concededly Al-merico’s testimony as to the routine practice establishes no presumption that it was followed in a particular instance, it is nonetheless sufficient to support an inference by the trier of fact that the practice was followed on the particular occasion in question, notwithstanding that Alvarez’s testimony directly contradicts such an inference. See Meyer v. United States, 638 F.2d 155 (10th Cir.1980) (under counterpart Federal Rule 406, testimony that it was government dentist’s habit, custom and routine to inform all patients of certain risks involved in the extraction of third molars sufficient to raise inference that he so advised plaintiff despite no direct testimony to that effect and plaintiff’s denial that she was so advised); Bloskas v. Murray, 44 Colo.App. 480, 618 P.2d 719 (1980), rev’d on other grounds, 646 P.2d 907 (Colo.1982) (same, where, under like state rule of evidence, testimony was that it was surgeon’s habit, custom and routine to inform patients of risks associated with replacement of joint); Envirex, Inc. v. Ecological Recovery Associates, Inc., 454 F.Supp. 1329 (M.D.Pa.1978), aff'd mem., 601 F.2d 574 (3d Cir.1979) (under Federal Rule 406, testimony that it was Envirex’s routine business practice to send entire proposal to all general contractors with which it contracted, including page containing conditions which Ecological denied receiving, sufficient by itself to prove that page was sent as part of the proposal). See also Amoco Production Company v. United States, 619 F.2d 1383 (10th Cir.1980); United States v. Cirillo, 425 F.Supp. 1254 (S.D. N.Y.), aff'd, 554 F.2d 54 (2d Cir.), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); United States v. Sorrell, 473 F.2d 1054 (7th Cir.1973) (dissenting opinion); State v. Van Sickle, 434 A.2d 31 (Me.1981).

Therefore, there being a genuine issue of material fact to be resolved by the jury as to whether the routine practice to which Almerico testified was followed when Alvarez applied for insurance, the summary judgment for Alvarez must be set aside, and it is, accordingly, reversed and the cause remanded for further proceedings.

Reversed and remanded.

      . In light of this controlling provision of the evidence code, we need not concern ourselves with whether, as has been suggested, see Nationwide Mutual Insurance Co. v. Jones, 414 So.2d 1169, 1171 n. 2 (Fla. 5th DCA 1982), Brown v. Giffen Industries abolished the Jarrard rule requiring corroborating evidence that a customary practice was followed in a given case or, as has been noted, see 5 C. Ehrhardt, West's Florida Practice-Florida Evidence, § 406.1, 89 n. 2 (1977), Jarrard and Brown merely represented two conflicting lines of authority from which lower courts might and did choose, compare Alexander v. Allstate Insurance Co., 388 So.2d 592 (Fla. 5th DCA 1980); Bernstein v. Liberty Mutual Insurance Co., 294 So.2d 63 (Fla. 3d DCA 1974); Equitable Life Assurance Society of the United States v. Wagoner, 269 So.2d 747 (Fla. 4th DCA 1972) (following Jarrard rule) with Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974), cert. denied, 310 So.2d 744 (Fla.1975) (following Brown rule).


text:
    Henry L. ROSENTHAL, Jr., Appellant, v. Paul E. ESQUINALDO, William Freeman and Gerald Hernandez, Jr., as the Monroe County Canvassing Board and Alston Fahrer, Appellees.
    No. 83-1976.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Rehearing Denied Jan. 27, 1984.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Randy Ludacer, Albury, Morgan & Hen-drick and Susan Vernon Mikul and Hugh J. Morgan, Key West, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Upon a holding that (1) there was substantial compliance with section 101.051(3), Florida Statutes (1981), see Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied mem., 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976), and (2) the trial court correctly concluded that Robert Sosby was a qualified elector of Monroe County notwithstanding the fact that he had applied for and received Homestead exemption in Dade County, see Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926), we affirm the trial court’s judgment validating the Monroe County Canvassing Board certification declaring Alison Fahrer to be the duly elected Monroe County Commissioner for District Four.

Affirmed.


text:
    Laurie GORDON, Appellant, v. Barry GORDON, Appellee.
    No. 83-1210.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
    Joseph P. Hoffman, Fort Myers, for appellant.
    Theodore L. Tripp, Jr., of Moorey, Seals, Garvin & Tripp, Fort Myers, for appellee.
   PER CURIAM.

Laurie Gordon challenges the trial court’s order dismissing with prejudice Count II of her second amended petition for dissolution of marriage. Count II alleged an intentional tort action; specifically, that during the marriage Barry Gordon converted money awarded to Laurie Gordon pursuant to settlement of her independent personal injury claim. We affirm.

We hold that the doctrine of interspousal tort immunity applies to bar Laurie Gordon’s recovery from her husband for the alleged conversion. Hill v. Hill, 415 So.2d 20 (Fla.1982); West v. West, 414 So.2d 189 (Fla.1982); Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). In doing so, however, our opinion should not be interpreted to preclude the trial court, in the pending dissolution proceeding, from exercising its discretion in fashioning a money award for Laurie Gordon which takes into consideration “any other factor necessary to do equity and justice between the parties.” § 61.08, Fla.Stat. (1981); Hill; West.

AFFIRMED.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


author: HERSEY, Judge.

text:
    In re ESTATE OF Anna Virginia LOCHHEAD, a/k/a Anna V. Lochhead, Deceased. Irvin Raymond MARTZ and Lucy Martz, Appellants, v. Margaret Louise BRANAM, the personal Representative of the Estate of Anna Virginia Lochhead, Deceased, Appellee.
    No. 83-39.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Rehearing Denied Feb. 1, 1984.

      John M. Bernazzoli of DeTardo, Longo & Bernazzoli, Hollywood, for appellants.
    Jay M. Levy, of Hershoff & Levy, Miami, for appellee.
   HERSEY, Judge.

This was a proceeding to revoke probate of a will. At trial, appellants, seeking to show lack of testamentary capacity and undue influence, attempted to call a medical witness whose name had not previously been disclosed to appellees. The trial court excluded the testimony of the witness by virtue of violation of the discovery rules. Final judgment upheld the will and this appeal ensued.

Appellants were served with interrogatories which contained the requirement that they furnish the “names and addresses of each and every witness to be called at trial.” Their answers to interrogatories were filed February 25, 1982, listing various witnesses together with the notation “additional witnesses as needed.” There was no objection or request for particulars in response to this answer, nor was there a pretrial conference or pretrial order.

After several continuances the matter came to trial in October 1982. Appellants unsuccessfully attempted to call a psychiatrist to counter the testimony of appellees’ expert witness. They argue that the necessity for this testimony only became apparent a month before trial. They further argue that they had no obligation to disclose the name of the witness before trial in the absence of a pretrial order. Appellants strongly suggest that their answers to interrogatories were complete when filed so that there was no continuing duty to make discovery based upon Rule 1.280(e) of the Florida Rules of Civil Procedure. This is a correct interpretation of the rule. Binger v. King Pest Control, 401 So.2d 1310, 1312 n. 4 (Fla.1981).

Exclusion of the testimony of a witness “is a drastic remedy which should be invoked only under the most compelling circumstances.” LoBue v. Travelers Ins. Co., 388 So.2d 1349, 1351 (Fla. 4th DCA 1980).

The evidence produced in the trial court presented very close questions on the issues of undue influence and testamentary capacity. The testimony of appellees’ medical expert undoubtedly was entitled to and was given great weight by the trier of fact. Under these circumstances it is clear that appellants’ case was prejudiced by the inability to put on a countervailing medical view. While there was not a complete proffer of what his testimony would have been its importance can be gleaned from counsel’s summary and argument. Appellants thus meet the burden of showing prejudice. First Republic Corp. of America v. Hayes, 431 So.2d 624 (Fla.1983).

One laudable purpose of disclosure is to eliminate surprise and trial by ambush. King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA), aff’d, 401 So.2d 1310 (Fla.1980). That purpose could have been achieved in this case by permitting appellees to depose the witness or simply by granting a continuance (particularly is this so where appellees never sought to compel a more explicit answer than “additional witnesses as needed.”)

We therefore conclude that it was an abuse of discretion to exclude the testimony of appellants’ psychiatric witness. This makes it unnecessary to consider the additional points on appeal. The final judgment is reversed and the cause remanded for a new final hearing.

REVERSED and REMANDED.

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


text:
    Robert H. PALMER and Hilda R. Palmer, his wife, Appellants, v. SHELBY PLAZA MOTEL, INC., a Florida corporation; Christ Loukoutos and Helen Loukoutos; and Resort Condo-Motels, Inc., a Florida corporation, Appellees.
    Nos. 83-150, 83-699.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
    Sondra Goldenfarb, and John C. Gardner, Clearwater, for appellants. '
    Richard B. Moritz of McNulty, Moritz, Pecarek & Dickey, Chartered, Largo, for appellees.
   PER CURIAM.

Robert and Hilda Palmer, plaintiffs/counter-defendants below, appeal a final order which 1) denied them relief in a mortgage foreclosure action against Shelby Plaza Motel, Inc., Christ and Helen Louk-outos, and Resort Condo-Motels, Inc., defendants/counter-plaintiffs below; 2) awarded appellees $69,000 in damages on a slander of title action against appellants, which action was predicated on appellants’ filing of a notice of lis pendens after the bringing of their foreclosure action; and 3) reserved jurisdiction to award appellees reasonable attorney’s fees and costs pursuant to an escrow agreement previously entered into between the parties which provided in part that, in the event of any litigation arising from the agreement, the prevailing parties would be entitled to an award of reasonable attorney’s fees and costs. (Appeal No. 83-150) Appellants also appeal the subsequent, related final order which, inter alia, awarded appellees reasonable attorney’s fees and costs. (Appeal No. 83-699)

Appellants do not contest the dismissal of their suit for foreclosure. They do, however, argue that the court erred in entering a judgment of damages and assessing attorney’s fees against them.

The lis pendens described only the property covered by the mortgage which appellants were seeking to foreclose. It had no existence separate and apart from the litigation of which it gave notice. Therefore, it was encompassed within the absolute privilege of judicial proceedings. Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981); Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981). Even though they successfully defended the mortgage foreclosure, appellees were not entitled to damages for slander of title. Nothing herein will preclude them from later filing a suit for malicious prosecution. See McMurray v. U-Haul Co., 425 So.2d 1208 (Fla. 4th DCA 1983).

Appellees’ contention that they were awarded damages for breach of an escrow agreement is without merit. Even though the trial testimony was not transcribed, the appellees’ pretrial conference statement clearly demonstrates that their claim for damages was based on slander of title. Moreover, the final judgment states that the damages were awarded because of the filing of the lis pendens. Any breach of the escrow agreement concerning application of the mortgage payments only had the effect of causing the mortgage to appear to be in default when it was not, thereby precipitating the unsuccessful foreclosure action.

The award of attorney’s fees must also be reversed. The trial court stated in its earlier final order that an award to appellees of reasonable attorney’s fees and costs would be based upon the escrow agreement. The foreclosure action arose from a dispute about this agreement, but the slander of title action did not. Nevertheless, the court awarded attorney’s fees in an amount representing not only the legal assistance rendered appellees concerning their defense against the foreclosure action but also that afforded them regarding their simultaneous prosecution of the slander of title action. Even if ap-pellees had been able to sustain their slander of title action, they were only entitled to attorney’s fees for the defense of the foreclosure action.

Accordingly, we reverse appellees’ judgment for damages against appellants and also the award of attorney’s fees. We remand with directions that the trial court gather whatever further evidence and testimony is necessary to enable it to award an amount which corresponds with the legal aid afforded appellees for the defense of the foreclosure action. In all other respects, we affirm the final orders appealed.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

HOBSON, A.C.J., and GRIMES and SCHOONOVER, JJ„ concur.


text:
    Julian A. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1373.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1983.

      Bennett H. Brummer, Public Defender, Scherman & Zelonker and Regina F. Zelonker, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Rodriguez, charged with attempted first-degree murder and convicted of attempted second-degree murder, contends in this appeal that the trial court erred in denying his request to charge the jury on attempted manslaughter, the effect of which, says Rodriguez, was to deprive him of a potential jury pardon.

The questions before us are whether attempted manslaughter is an offense under Florida law; if so, whether the failure to instruct thereon upon the defendant’s request was error; and, if so, whether the error can be considered harmless in light of the jury having been instructed on aggravated assault. For the reasons which follow, we reverse the defendant’s conviction upon a holding that (1) attempted manslaughter is a crime in Florida, at least under circumstances where, as here, the facts will support a reasonable inference that the manslaughter attempted would have been a voluntary manslaughter at common law; (2) the trial court’s refusal to instruct the jury on attempted manslaughter, a lesser degree of the crime of attempted second-degree murder for which he was convicted, was error; and (3) such error was not rendered harmless by the jury having been instructed on aggravated assault.

I.

Manslaughter, in general, is defined in Section 782.07, Florida Statutes (1981), as:

“The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of Chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree .... ”

The underlying assumption of the Florida cases which have thus far directly or indirectly addressed the question of whether there is a crime of attempted manslaughter in Florida has been that the manslaughter statute deals solely with unintentional killings, that is, those which are effected by the culpable negligence of the defendant. This assumption has inevitably led to the uniform conclusion that it is paradoxical to say that a person may attempt (act voluntarily and intentionally) to commit manslaughter (act involuntarily and unintentionally). See Lassiter v. State, 98 Fla. 370, 373, 123 So. 735 (1929) (Brown, J., dissenting); Taylor v. State, 401 So.2d 812, 816 (Fla. 5th DCA 1981) (Dauksch, C.J., concurring and dissenting); Robinson v. State, 338 So.2d 1309, 1311 n. 1 (Fla. 4th DCA 1976). But despite recognizing the illogic of this conclusion, the two Florida courts which to date have directly addressed the question of whether there exists the crime of attempted manslaughter have been persuaded that such a crime exists based on long-standing Florida precedent holding that the analogous and, to them, equally illogical, crime of assault with intent to commit manslaughter exists. Brown v. State, 431 So.2d 247 (Fla. 1st DCA 1983); Taylor v. State, 401 So.2d 812. See also Tillman v. State, 440 So.2d 666 (Fla. 1st DCA 1983). Thus, in Taylor, adopted in Brown, and most recently followed in Tillman, the court reasoned:

“[I]f we start with the premise that there can be an assault with intent to commit the same [involuntary] act (manslaughter), then it must follow that there can be an attempt (the formation of an intent) to commit the crime, when the other elements of attempt are present. Thus precedent, if not logic, requires that we hold that there is a crime of attempted manslaughter in Florida.” 401 So.2d at 816 (emphasis in original).

We agree with the conclusion in Taylor, Brown and Tillman that there is a crime of attempted manslaughter in Florida; however, because we do not accept the underlying assumption that the manslaughter statute is restricted to unintentional killings, we find no logical absurdity in this conclusion in a factual setting where, as here, the manslaughter attempted would have been a voluntary manslaughter at common law.

II.

Although one cannot attempt to do an unintentional act, Williams v. State, 41 Fla. 295, 26 So. 184 (1899); but see Gentry v. State, 437 So.2d 1097 (Fla.1983), manslaughter embraces both intentional (voluntary) killings, see W. LaFave & A. Scott, Criminal Law §§ 75-77 (1972); 2 C. Torcia, Wharton’s Criminal Law §§ 153-165 (14th ed. 1979); R. Perkins, Perkins On Criminal Law 51 (2d ed. 1969), and unintentional (involuntary) killings, see W. La-Fave & A. Scott, supra, §§ 78-79, at 586; 2 C. Torcia, supra, §§ 166-172, at 263; R. Perkins, supra, at 70.

Among the intentional killings recognized at common law as voluntary manslaughter were those committed (1) in the heat of passion, Forehand v. State, 126 Fla. 464, 470,171 So. 241, 243 (1936) (a heat of passion killing is one arising from adequate provocation, that is, provocation “calculated to excite such anger as might obscure the reason or dominate the volition of an ordinary reasonable man”); Disney v. State, 72 Fla. 492, 502, 73 So. 598, 601 (1916) (when the mind operates in the heat of passion, “pre-meditation is supposed to be impossible, and depravity which characterizes murder in the second degree absent”); Olds v. State, 44 Fla. 452, 461, 33 So. 296, 299 (1902) (“A killing in sudden passion, excited by sufficient provocation, is manslaughter, not because the law supposes that this passion made ... (the slayer) unconscious of what he was about to do, and stripped the act of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions”); see Collins v. State, 88 Fla. 578, 102 So. 880 (1925); Pridgeon v. State, 425 So.2d 8 (Fla. 1st DCA), rev. denied, 421 So.2d 68 (1982); (2) in mutual combat, Eiland v. State, 112 So.2d 415, 419 (Fla. 2d DCA 1959) (“[Mjutual combat is predicated upon the proposition that both parties involved are at fault, neither being the aggressor more than the other, and if in such combat one slays the other, such killing is manslaughter.”); see Disney v. State, 73 So. 598; Holland v. State, 12 Fla. 117 (1867-68); (3) by the use of excessive force to defend oneself, Roberts v. State, 425 So.2d 70 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 888 (Fla.1983); Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 640 (Fla.1980); see Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979); (4) by the use of excessive force to resist an unlawful arrest, Alday v. State, 57 So.2d 333 (Fla.1952); Roberson v. State, 43 Fla. 156, 29 So. 535 (1901); and (5) with neither premeditation nor depravity, Cook v. State, 46 Fla. 20, 35 So. 665 (1903); accord, Lindsey v. State, 53 Fla. 56, 43 So. 87 (1907) (same rule in case of assault with intent to commit second-degree murder or manslaughter); see also Manuel v. State, 344 So.2d 1317 (Fla. 2d DCA 1977), cert. dismissed, 355 So.2d 515 (Fla.1978). Just as an intentional killing may constitute manslaughter, an unintentional killing, as for example, where the killing is brought about by the culpable negligence of the defendant, may constitute manslaughter. Bess v. State, 146 Fla. 562, 1 So.2d 580 (1941); Gainer v. State, 100 Fla. 164, 129 So. 576 (1930); Folks v. State, 85 Fla. 238, 95 So. 619 (1923); Kent v. State, 53 Fla. 51, 43 So. 773 (1907).

III.

Although the common-law crime of manslaughter was codified by statute in 1868, its definition as the “killing of a human being, by the act, procurement, or culpable negligence of another,” which is neither excusable or justifiable, nor otherwise condemned as murder, has remained unchanged since 1892. Since that time, the quoted statutory language has been construed as embracing both voluntary and involuntary manslaughter, a construction which first led the courts to the perfectly logical conclusion that there is such an offense as assault with intent to commit manslaughter.

In Williams v. State, 41 Fla. 295, 26 So. 184, the defendant was found guilty of assault with intent to commit manslaughter. Claiming that there was no such crime, the defendant moved for arrest of judgment, and thereafter appealed the denial of his motion. The Florida Supreme Court affirmed, holding that since manslaughter included intentional killings, the crime of assault with intent to commit manslaughter does exist:

“[I]t must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful, and a felony, no man can intentionally do an unintentional act; and without the intent the assault cannot be punished under this statute, even though the killing, had it been committed, would have amounted to a felony....
“It will readily be perceived by an analysis of the language of [the homicide statute] that there is nothing to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design.
“[Tjhere is nothing in our statute which implies that the intent to take life must be deliberate or premeditated....” 41 Fla. at 298-300, 26 So. at 185-86.

See also Grantham v. State, 139 Fla. 129, 132, 190 So. 495, 496 (1939) (“The intent [to take the life of the victim of the assault] must be proven to justify conviction of assault with intent to commit manslaughter.”); Bryan v. State, 45 Fla. 8, 34 So. 243 (1903); Knight v. State, 44 Fla. 94, 32 So. 110 (1902); McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445 (1961) (discussing Florida law).

It obviously follows from Williams that if the manslaughter attempted is a voluntary manslaughter, there is no logical impediment to concluding, and we do so conclude, that one can attempt to commit a voluntary manslaughter.

IV.

Having concluded that the crime of attempted manslaughter is an offense under the circumstances of this case, we turn to the question of whether the trial court erred when it refused to instruct the jury thereon. We think the answer is self-evident. Where a homicide has in fact occurred, the jury must be instructed on all degrees of murder from the degree charged and below, as well as manslaughter. Lewis v. State, 377 So.2d 640 (Fla. 1979); Martin v. State, 342 So.2d 501 (Fla. 1977); Brown v. State, 245 So.2d 68 (Fla. 1971), modified, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Fuller v. State, 414 So.2d 264 (Fla. 3d DCA 1982). It necessarily follows that where death has not occurred and the offense charged is consequently attempted murder, the jury must be instructed on attempt to commit all degrees of murder from the degree charged and below and, at least where the attempt is to commit voluntary manslaughter, on attempted manslaughter. See Brown v. State, 206 So.2d 377 (Fla.1968); Fla.R.Crim.P. 3.490, 3.510.

y.

Finally, we address the question whether the trial court’s refusal to charge on attempted manslaughter can be considered harmless under the circumstances of this case. The jury was instructed on the lesser-included offense of aggravated assault, which as a third-degree felony, § 784.021, Fla.Stat. (1981), is punishable in the same manner as attempted manslaughter, § 777.04(4)(c), Fla.Stat. (1981). It has been stated, albeit in dictum, that “if the jury is given the opportunity of convicting the defendant of a lesser included offense which is greater than or at least equal in punishment to the attempt, failure to instruct on attempt may be harmless error.” Garrison v. State, 340 So.2d 1171, 1173 (Fla. 4th DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977) (emphasis supplied). Assuming, arguendo, that there may be cases in which a jury’s pardon power can be said to be unaffected by the omission of an attempt instruction because a lesser-included offense of equal degree was presented to it for determination, this is not such a case. See State v. Bruns, 429 So.2d 307 (Fla.1983) (error of failing to instruct jury on petit larceny not harmless where defendant convicted of robbery of property having a value of less than $100, notwithstanding that jury instructed on attempted robbery, an offense which carries a higher penalty than petit larceny); Piantadosi v. State, 399 So.2d 382 (Fla. 3d DCA), rev. denied, 408 So.2d 1095 (Fla.1981) (failure to request instruction on one second-degree misdemeanor one step removed from conviction is not waiver of right to requested instruction on another second-degree misdemeanor); Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980) (error harmful per se where court fails to instruct on third-degree murder, an offense immediately below second-degree murder for which defendant convicted, notwithstanding that jury instructed on manslaughter, an offense of equal degree with third-degree murder). Although here the jury was given the opportunity to return a verdict on the “equal” offense of aggravated assault, the jury may have rejected that opportunity because it concluded that Rodriguez shot at the officer with intent to kill. Concluding that the defendant intended to kill, but not convinced that he acted with premeditation or in a manner evincing a depraved mind, the jury might have exercised its pardon power by convicting the defendant of attempted manslaughter. See State v. Bruns, 429 So.2d 307. Therefore, we cannot find that the error of failing to instruct on attempted manslaughter was harmless under the circumstances of this case.

Reversed and remanded for a new trial.

      . There was testimony which, if believed by the jury, would support the conclusion that on the night in question the defendant was not aware that the person who shouted at him to stop and came after him as he was walking away from the scene of a disturbance was a police officer, and testimony from which the jury could have inferred that the defendant fired shots at this person after having first fired up in the air to ward off his unknown pursuer. While there does not appear to be evidence that the defendant fired at this person only after having been fired upon, so as to bring this case within the concept of mutual ■ combat voluntary manslaughter, see infra, the evidence would sustain an inference that the defendant did not act with premeditation or evincing a depraved mind, but did act with the intent to kill so as to bring this case within the category of intentional killings committed with neither premeditation nor depravity, see infra.

      . Specifically defined as killings constituting manslaughter are assisting self-murder (§ 782.-08, Fla.Stat. (1981)), the willful killing of an unborn quick child (§ 782.09, Fla.Stat. (1981)), unnecessary killing to prevent an unlawful act (§ 782.11, Fla.Stat. (1981)), and killing someone while driving while intoxicated (§ 316.1931(2), Fla.Stat. (Supp.1982) (formerly § 860.01(2), Fla. Stat. (1981)).

      . The question of whether the crime of attempted manslaughter exists, having been certified in Taylor, Brown and Tillman, is now pending before the Florida Supreme Court.

      . Apparently, the rule in the majority of the United States is that there is such a crime as attempted voluntary manslaughter. See Sachs, Is Attempt To Commit Voluntary Manslaughter A Possible Crime?, 71 Ill.BJ. 166 (1982).

      . If an accidental death occurs "in the heat of passion," the killing in most circumstances is excusable homicide. § 782.03, Fla.Stat. (1981).

      . If an accidental death occurs “upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner,” the killing is excusable homicide. § 782.-03, Fla.Stat. (1981). See Tipton v. State, 97 So.2d 277 (Fla.1957); Aiken v. State, 425 So.2d 641 (Fla. 3d DCA 1983).

      .Other intentional killings which are manslaughter are elsewhere defined. See n. 2, supra.

      . In 1868, the Florida Legislature codified the law of homicide. Ch. 1637, Laws of Fla. (1868). The statute laid out a general definition of manslaughter, which is almost identical to Section 782.07.
      "Sec. 3. The killing of one human being, by the act, procurement, or omission of another, in cases where such killing shall not be murder, according to the provisions of this chapter, is either justifiable or excusable homicide or manslaughter.”
      The chapter continued with various sections listing certain acts, some common law manslaughter killings, others not, and assigning to them degrees of manslaughter. Voluntary heat of passion killing was listed as third-degree manslaughter. Involuntary heat of passion killing, committed under circumstances not constituting excusable homicide, was listed as fourth-degree manslaughter. In 1892, the Legislature revised the homicide statute. Title 2, Ch. 2, Fla.Rev.Stat. (1892). Manslaughter was defined exactly as it is today in Section 782.07 (§ 2384, Fla.Rev.Stat. (1892)). Degrees of manslaughter were eliminated. Certain killings (assisting self-murder, killing of an unborn child, abortion, unnecessary killing to prevent an unlawful act, killing by mischievous animal, drowning in an overloaded vessel, death from racing a steamboat, and killing by an intoxicated physician), all of which had appeared in the 1868 statute, were specifically listed as manslaughter. Other classic common-law manslaughters (misdemeanor manslaughter, heat of passion killings, involuntary killing of a trespasser, and killing through negligence) were no longer specifically listed but became subsumed within the general definition. The present manslaughter statute continues this structure. Classic manslaughters are contained within the general definition, and certain specific killings are separately defined as manslaughter. See §§ 782.08, 782.09, 782.11, Fla.Stat. (1981); § 316.1931(2), Fla.Stat. (Supp. 1982).

      . Because we find, infra, that the facts in the present case are susceptible of leading to a reasonable inference that the manslaughter attempted was a voluntary manslaughter, it is unnecessary for us to decide whether one can attempt to commit an involuntary manslaughter. We do, however, note in passing that the Florida precedent holding that there is a crime of assault with intent to commit manslaughter, although in our view requiring a holding that there is a crime of attempted voluntary manslaughter, does not, as Taylor v. State, 401 So.2d 812, says, and its progeny imply, require a holding that there is a crime of attempted involuntary manslaughter, that is, manslaughter by culpable negligence. Williams v. State, 26 So. 184, from which the Florida precedent cited in Taylor derives, stands, as we have said, solely for the proposition that there is a crime of assault with intent to commit voluntary manslaughter and indeed states there can be no such thing as an assault to commit involuntary manslaughter. We also note that the holding in Charlton v. Wainwright, 588 F.2d 162 (5th Cir.1979), that there is a crime of attempted manslaughter by culpable negligence, relied on in Taylor, does not withstand critical analysis. The basis of Charlton’s holding is its initial conclusion that Florida courts had construed culpable negligence as being the equivalent of intentional or quasi-intentional behavior. But while it was indeed said in Cannon v. State, 91 Fla. 214, 221, 107 So. 360, 363 (1926), that culpable negligence is equivalent to an intentional violation of the rights of others, Cannon must be read in conjunction with Kent v. State, 53 Fla. 51, 43 So. 773 (1907), upon which the Cannon statement is based. Kent’s declaration that “intent is not an essential element of the statutory definition of [manslaughter] when committed by culpable negligence,” 53 Fla. at 54-55, 43 So. at 774, has consistently been held to mean that “in statutory manslaughter, the element of criminal intent has been supplanted by the statutory element of ‘culpable negligence.’ ” Hulst v. State, 123 Fla. 315, 319, 166 So. 828, 829-30 (1936) (emphasis supplied). See Dominique v. State, 435 So.2d 974 (Fla. 3d DCA 1983) (culpable negligence “replaces” the element of criminal intent). Thus, as can plainly be seen, Cannon ⅛ equating culpable negligence with an intentional violation is not meant to convey that intent may be inferred from the culpably negligent act, but rather that in instances where criminal punishment for culpable negligence is deemed appropriate, culpable negligence will be substituted for the ordinarily required intent. See Carraway v. Revell, 116 So.2d 16, 20-21 (Fla.1959) ("In statutory manslaughter, the element of criminal intent (ordinarily an essential element of a crime) is supplanted by culpable negli-gence_ The crime of manslaughter may exist without criminal intent when culpable negligence is substituted therefore....” (emphasis supplied)); Pitts v. State, 132 Fla. 812, 182 So. 234 (1938); Austin v. State, 101 Fla. 990, 993, 132 So. 491, 493 (1931) (culpable negligence takes the place of criminal intent); Lassiter v. State, 98 Fla. 370, 123 So. 735 (1929); Anthony v. State, 246 So.2d 600 (Fla. 2d DCA), cert. denied, 249 So.2d 441 (Fla.1971); McCullers v. State, 206 So.2d 30 (Fla. 4th DCA), cert. denied, 210 So.2d 868 (Fla.1968). But see Kelly v. State, 78 Fla. 636, 83 So. 506 (1919) (finding defendant guilty of attempted culpable negligence manslaughter with intent to kill). This distinction is explained by Professor Perkins:
      “Often [criminal intent] is used to include criminal negligence as well as an actual intent to do the harmful deed [noting courts which have stated intent is inferred from the reckless conduct], although at other times such negligence is referred to as a substitute, so to speak, for criminal intent in connection with certain offenses [citing courts which have stated negligence takes the place of criminal intent].”
      R. Perkins, supra, at 744.
      The distinction, however, was overlooked in Charlton. Moreover, this court’s statement in State v. Simone, 431 So.2d 718 (Fla. 3d DCA 1983), that "the Legislature intended the culpable negligence statute [§ 784.05, Fla.Stat.] to punish acts of the same character as those covered by the offense of manslaughter by culpable negligence ..., [where such] acts do not result in the death of the victim,” id. at 722 (emphasis supplied), suggests, contrary to Charlton, that there is no crime of attempted manslaughter by culpable negligence.
      Our conclusion that one can attempt to commit voluntary and intentional manslaughter also renders it unnecessary for us to concern ourselves with Gentry v. State, 437 So.2d 1097 (Fla.1983), where the court held that attempt is a general intent crime, and in dictum went on to redefine third-degree murder as a general intent crime. If third-degree murder, which by definition has always been a non-intent crime, has now been converted, by Gentry’s novel dictum, into a general intent crime, then manslaughter by culpable negligence, also a non-intent crime, may by the same reasoning be a general intent crime which, under Gentry's analysis, can be attempted.

      . Inter alia, an aggravated assault is an assault with a deadly weapon without intent to kill. § 784.021(l)(a), Fla.Stat. (1981).


text:
    Matilde DIAZ, Appellant, v. Francisco DIAZ, Appellee.
    Nos. 82-1641, 82-2542.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Greene & Cooper and Robyn Greene and Joan Bolotin, Miami, for appellant.
    Hersh & Bernstein and Brian Hersh, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Spradley v. Spradley, 335 So.2d 822 (Fla.1976); Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Miller v. Miller, 342 So.2d 85 (Fla. 1st DCA 1976), cert. denied, 354 So.2d 983 (Fla.1977); Flipse v. Flipse, 305 So.2d 16 (Fla. 3d DCA 1974).


text:
    Felix MARTIN and Government Employees Insurance Company, Appellants, v. Bill YOUNG and Eddrest D. Young, Appellees.
    No. 82-1920.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Mitchell, Harris, Canning, Murray & Usich, Miami, for appellants.
    Horton, Perse & Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appel-lees.

      Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

In a personal injury action arising out of an automobile collision, the trial court directed a verdict in favor of plaintiffs, finding that both liability and the statutory threshold requirements under Florida’s no-fault statute were established as a matter of law. The jury then awarded plaintiffs $100 in compensatory damages and $50 in punitive damages. The trial court entered an order granting a new trial on the issues of compensatory and punitive damages. Defendants appeal, contending that the trial court erred in granting a new trial, and in directing a verdict on the issue of the permanency of plaintiffs injuries under the no-fault statute’s threshold requirements.

We affirm the directed verdict on the no-fault threshold issue. Although the issue is ordinarily a factual one for submission to a jury, see, e.g., Allstate Insurance Co. v. Ruiz, 305 So.2d 275 (Fla. 3d DCA 1974), here the directed verdict for the plaintiffs was proper in that there was no conflict in the medical evidence and no other reasonable inferences to be drawn from that evidence. See Hendricks v. Dailey, 208 So.2d 101 (Fla.1968). We also affirm the granting of a new trial on the compensatory damages issue because defendants have not demonstrated that the trial court abused its discretion. Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

We reach a different conclusion on the punitive damages issue. The claim for punitive damages was based on alleged “willful and wanton conduct” on the part of defendant Martin in operating a vehicle with defective brakes. The defendant’s un-controverted testimony is that he was aware of a slow leak somewhere in his braking system which required a periodic “topping off” of the brake fluid reservoir; that he had never before experienced a total brake failure; that prior to the accident the brake pedal was “hard”. He further stated that he previously had taken the automobile to a mechanic who was unable to locate the leak. The officer who investigated the accident testified that when he tested the brakes on defendant’s vehicle at the accident scene, they appeared to be working properly.

The character of negligence necessary to support an award of punitive damages was defined by the Florida Supreme Court in Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla.1959) as:

... of ‘a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.’ [cites omitted].

We agree with defendants that the evidence in the record does not support a claim for punitive damages and that, therefore, the issue should not have gone to the jury.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . See § 627.737(2), Fla.Stat. (1981).


text:
    Dorothy MASSEY, Appellant, v. Cleveland MASSEY, Appellee.
    No. 82-2471.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Janet Reno, State Atty., and Benitta Berke, Asst. State Atty., for appellant.
    DeMeo & Sherman and Thomas G. Sherman, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

After rendering a $1,150 judgment in the mother’s favor for arrearages on a 1966 child support order entered in an Alabama-initiated Uniform Reciprocal Enforcement of Support Act proceeding, the trial court granted rehearing and set it aside because the payments in question had accrued after the children turned eighteen. In doing so, it followed Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982), which holds that the mother lacks standing to recover those amounts, even under a pre-1973 award like this one which requires the father to make child support payments until twenty-one. The wife appeals.

The extensive discussions contained in the three opinions in Cronebaugh make repetition unnecessary and meaningful addition impossible. We prefer and adopt the dissenting opinion of Judge Sharp in Cronebaugh, at 415 So.2d 743, as the appropriate resolution of the present issue and therefore reverse the order under review and remand the cause with directions to reinstate the initial $1,150 judgment against the appellee.

Reversed.

      . While, unlike Cronebaugh, direct payments to the children were not involved here, that fact does not affect, see Clemons v. Flagler Hospital, Inc., 385 So.2d 1134, 1136, n. 3 (Fla. 5th DCA 1980), the alternative holding of the majority on the standing issue which was followed by the trial court but with which we disagree.

      . We concur with Judge Sharp that, in every such instance, the mother has the right to en-ióme a "limbo" support order between ages eighteen and twenty-one; we would point out, moreover, that the evanescent nature of the supposed alternative remedy for enforcement— that is, an action by the children themselves — is emphasized in the present context by the dubiousness of the ability of adult children even to maintain an action under the URESA.


author: BASKIN, Judge.

text:
    Orlando BOQUETTE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-326.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti A. Roth-enberg, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

Finding no merit in appellant’s contention that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications, we affirm the judgment convicting Boquette of burglary and attempted sexual battery with the use of force not likely to cause serious personal injury. However, as conceded by the state, the trial court erroneously sentenced Bo-quette to fifteen years imprisonment on his conviction for sexual battery. We therefore reduce his sentence on count two to the maximum five year term permitted by statute. See §§ 794.011(5); 777.044(4)(c); 775.082(3)(d), Fla.Stat. (1981).

Affirmed as modified.