author: WIGGINTON, Judge.

text:
    CUSTODIS CONSTRUCTION and Argonaut Insurance Company, Appellants, v. Bruce M. REGISTER, Appellee.
    No. AO-380.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.

      E. Robert Williams and James H. McCarty, of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellants.
    Albert W. Whitaker, of Walton & Townsend, Palatka, for appellee.
   WIGGINTON, Judge.

Employer/carrier appeal the deputy commissioner’s order finding appellee Register’s knee injury compensable. We affirm.

Register originally injured his left knee in a work related accident on December 30, 1980, having experienced no prior knee problems according to his testimony. Register, his wife, and stepfather all testified that after that injury Register continued to have severe problems with his left knee and often suffered knee pain. His treating physician, Dr. Blake, an orthopedic surgeon, diagnosed a knee sprain after performing tests, including an arthroscopy, and finding no abnormalities in the knee. He testified that he had suspected a meniscal tear because of Register’s complaints of his knee popping and buckling and he could not connect the popping symptom with a mere sprain. He further testified that “there are false negatives in arthroscopies.” He believed Register to be a “straightforward fellow” and because the patient continued to be symptomatic, Dr. Blake did not exclude the possibility that he had misdiagnosed Register’s condition.

On November 15,1981, Register reinjured his left knee when, after cleaning the back of his pickup truck, he put his hand on the tailgate and hopped down about three feet, landing on his right foot first and then on his left. When he put weight on his left leg, his left knee popped and buckled and soon began to swell. Dr. Blake examined Register the next day and found a number of mechanical injuries, including a cruciate tear. He stated that such an injury commonly is caused from a sudden deceleration, such as would occur when a knee receives the impact of a jump. He further stated that conceivably Register had some cruciate injury as a result of the December, 1980, accident which did not show up in the earlier tests but made the knee weaker and then susceptible to reinjury at the time of the second incident.

Employer/carrier refused payment for any benefits for the November, 1981, accident, claiming that it was not compensable. The deputy commissioner determined that the November, 1981, injury was due to weakness in the knee as a result of the December, 1980, accident and thereupon awarded benefits. She also found Register entitled to an attorney’s fee pursuant to Section 440.34(2)(c), Florida Statutes.

The employer/carrier contend that no causal connection between the first and second injury has been shown within a reasonable degree of medical probability and also that the second injury was due to an intervening cause not related to the first injury and therefore is not compensable. Sosenko v. American Airmotive Corporation, 156 So.2d 489 (Fla.1963).

We acknowledge that the record contains no medical testimony that “within reasonable medical probability” the two injuries were directly related. However, Dr. Blake did testify that he could not explain Register’s continued symptoms following the first injury based on his diagnosis of a mere sprain. He also believed Register’s complaints were sincere. We further recognize the general rule that a finding of a causal relationship must be based upon a reasonable medical probability — not possibility. Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981); Nelson v. Hebrew Home for Aged, 276 So.2d 468 (Fla.1973). However, reasonable medical probability may be predicated upon either lay or medical testimony or a combination of both in appropriate circumstances.

A combination of the lay and medical testimony in this case provides competent substantial evidence of causal relationship. Dr. Blake was puzzled by Register’s continuing symptoms to the extent that he questioned his diagnosis of a mere sprain and conceded that perhaps the injury to the knee as a result of the first accident could have been more extensive than he originally believed. He stated that the original injury could have weakened the knee so that it was more susceptible to reinjury at the time of the second incident. According to Register and other witnesses, he had not suffered knee problems prior to the December, 1980, accident but suffered continuously thereafter. Further, accepting his version of the November, 1981, incident — that he hopped down from the back of the truck using his hand and his right leg as the main weight bearers — there is ample evidence that the second injury alone was insufficient to have caused such extensive damage in a healthy knee and thus was not an intervening cause. Accepting all the evidence in a light most favorable to Register, as the deputy commissioner was entitled to do, there is competent, substantial evidence to support the deputy commissioner’s conclusion.

We have considered employer/carrier’s contention that the award of an attorney’s fee was error and find it to be without merit.

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.

      . Scotty’s, Inc.; Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1970).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    T.T., a child, Appellant, v. Larone THOMAS, Superintendent, North Florida Regional Juvenile Detention Center, Appellee.
    No. AP-99.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    John Fischer and Martha Ann Lott, Asst. Public Defenders, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on appeal from a order denying appellant’s petition for writ of habeas corpus. We agree that the trial court failed to follow the Florida Rules of Juvenile Procedure and that this failure resulted in appellant’s liberty being restrained without a formal charge, hearing, or adjudication of contempt, and without a showing of exigent circumstances which would excuse the lack of notice and hearing prior to her detention. We therefore reverse the trial court’s denial of appellant’s petition for habeas corpus and remand for proceedings consistent with the Florida Rules of Juvenile Procedure.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


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

text:
    WATSON REALTY CORPORATION, a Florida corporation, and Terri Murphy, Appellants, v. Thomas F. QUINN and Nancy A. Quinn, his wife, Appellees.
    Nos. AQ-231, AQ-299.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Robert F. Spohrer and Timothy W. Terry of Zisser, Robinson, Spohrer, Wilner & Harris, P.A., Jacksonville, for appellants.
    Simon D. Rothstein of Adams, Rothstein & Siegel, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

We affirm the trial court’s judgment for plaintiffs entered upon a jury verdict on this claim for damages resulting from alleged fraudulent misrepresentations of material facts in connection with plaintiffs’ purchase of a home. In doing so we adhere to Sprayberry v. Sheffield Auto and Truck Service, Inc., 422 So.2d 1073 (Fla. 1st DCA 1982), pet. rev. vol. dism., 427 So.2d 738 (Fla.1983), holding that plaintiff’s burden of proof is that of a preponderance or greater weight of the evidence. The instruction to this jury was therefore correct. In our view the reference in Canal Authority v. Ocala Manufacturing, Ice and Packing Co., 332 So.2d 321, 327 (Fla.1976), to “clear and convincing” evidence of fraud is not the Supreme Court’s holding in that decision, but is obiter dicta not intended to be decisive of the issue. As we did in Sprayberry, we again make our view of Canal’s language explicit so that, if we have misconceived the effect of Canal, that error may be remedied by the Supreme Court in due course.

AFFIRMED.

SHIVERS and NIMMONS, JJ., concur.


text:
    Harold SNOWTEN, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY and Willie Lee Snowten, Appellees.
    No. AQ-380.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Anthony J. Salzman, Gainesville, for appellant.
    Lauchlin T. Waldoch and Toby Monaco, of Dell, Graham, Willcox, Barber, Monaco & Cates, P.A., Gainesville, for appellees.
    Kimberly A. Ashby, of Maguire, Voorhis & Wells, P.A., Orlando, for amicus curiae, Florida Defense Lawyers Ass’n.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for amicus curiae, Academy of Florida Trial Lawyers.
   PER CURIAM.

AFFIRMED. Raisen v. Raisen, 379 So.2d 352 (Fla.1979).

We certify the following question as being of great public importance:

IS THE DOCTRINE OF INTERSPOUSAL IMMUNITY WAIVED, TO THE EXTENT OF AVAILABLE LIABILITY INSURANCE, WHEN THE ACTION IS FOR A NEGLIGENT TORT?

ROBERT P. SMITH, Jr., SHIVERS and NIMMONS, JJ., concur.


text:
    Carlos DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. AS-82.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Carlos Daniels, Arcadia, in pro. per., for appellant.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to file a new motion alleging, if such be the case, that the crime occurred prior to October 1, 1980, the effective date of the amendment to the Youthful Offender Act making classification under the Act discretionary rather than mandatory. Compare Section 958.04(2), Florida Statutes (1979), and Section 958.04(2), Florida Statutes (1981).

JOANOS, WIGGINTON & ZEHMER, JJ., concur.


text:
    Dorio DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. AS-83.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.

      Dorio Daniels, pro se, for appellant.
    No Appearance for appellee.
   PER CURIAM.

There is no allegation in appellant’s motion to reflect that the crime for which he was charged occurred prior to October 1, 1980. Therefore, pursuant to Section 958.-04, Florida Statutes (1981), the decision of whether or not to classify appellant as a youthful offender was within the discretion of the Circuit Judge.

AFFIRMED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


text:
    John FLOWERS, II and John Flowers, Appellants, v. ASBURY REALTY COMPANY, a Florida Corporation, et al., Appellees.
    No. AS-477.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Charles B. Lembcke, of Datz, Jacobson & Lembcke, Jacksonville, for appellants.
    James C. Rinaman, Jr. and Jeptha F. Barbour, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED. Compare Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983).

JOANOS, WIGGINTON and NIMMONS, JJ., concur.


text:
    Archie NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1698.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.
   ON MOTION FOR REHEARING

PER CURIAM.

After a consideration of appellant Archie Nelson’s motion for rehearing, we grant the motion, withdraw our earlier decision and substitute the following opinion in its place:

We reverse appellant’s conviction and sentence and remand for a new trial since, after appellant waived Ms right to be represented by court-appointed counsel, the trial court failed to inquire of him pursuant to the requirements set forth in Williams v. State, 427 So.2d 768, 769 (Fla. 2d DCA 1983) and Florida Rule of Criminal Procedure 3.111(d)(2) and (3).

REVERSED and REMANDED.

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


author: SCHOONOVER, Judge.

text:
    Gregory ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1965.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Gregory Adams, has appealed from the judgments and sentences entered pursuant to jury verdicts finding him guilty of kidnapping and sexual battery. We only find merit in appellant’s contention that the trial court erred in the manner in which it retained jurisdiction over his sentences.

The appellant was sentenced to serve ninety-nine years on the kidnapping charge and thirty years on the sexual battery charge. In addition to making the sentences run consecutively, the court retained jurisdiction over one-third of each of them.

At the time the appellant committed the offenses for which he was convicted, section 947.16(3), Florida Statutes (1981), provided in part:

When any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court as provided herein shall apply to one-third of the total consecutive sentences imposed.

Accordingly, the trial court had the authority to retain jurisdiction to review any parole commission release order for one-third of the total consecutive sentences imposed, but not the first one-third of each of the consecutive sentences imposed. Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982).

We therefore affirm the appellant’s convictions and sentences but strike each of the special provisions for retention of jurisdiction and remand to the trial court with directions to reconsider the period of retention in accordance with section 947.16(3), Florida Statutes (1981).

REVERSED and REMANDED.

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


author: DANAHY, Judge.

text:
    John L. GRADY, Appellant, v. Wade SCAFFE, Appellee.
    No. 82-2381.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Robert J. Coleman, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   DANAHY, Judge.

The appellant, the plaintiff below in this defamation action, appeals from an order dismissing his complaint with prejudice. We affirm.

For purposes of this appeal we look, of course, only at the allegations contained in the complaint. These reflect that the appellant is the developer of Suncoast Estates, a residential development in Lee County. The appellee is a member of the Lee County Board of County Commissioners. The allegedly slanderous remarks of the appellee occurred at a meeting of the County Commission following the presentation to the Commission of an application by a Suncoast Estates homeowner for a permit allowing the owner to move a mobile home onto her lot. Prior to voting on the request, the members of the Commission discussed the application of the Lee County subdivision regulations to Suncoast Estates. Mention was made of a lawsuit that another property owner in Suncoast Estates had filed against the County Commission a few weeks earlier demanding a mobile home move-on permit. The appellee made a motion to grant the permit request then pending and the motion passed unanimously.

Following that vote, the appellee made derogatory remarks about the appellant and his dealings with the county concerning Suncoast Estates, which we will not repeat here. Suffice it to say that the remarks, for purposes of this appeal, can be considered defamatory. The appellant brought this action against the appellee to recover damages for the alleged slander.

The question is whether the appellee is protected by an absolute privilege from liability to the appellant in this action. The appellant asserts in his complaint that the appellee’s remarks were not germane to any matter then being discussed by the County Commission; that any discussion concerning Suncoast Estates had terminated and the Commission had moved on to other business. Relying on Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907), the appellant argues that the holder of a public office may be held liable for defamatory remarks which have no relation to, or connection with, the cause in hand or the subject of inquiry.

The appellant’s reliance on the Myers case is misplaced; that case involved statements of a private litigant in the course of a judicial proceeding. As far as public officials are concerned, the rule in Florida is set forth in McNayr v. Kelly, 184 So.2d 428 (Fla.1966), as follows:

It seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefor in this State. Nor is it questioned that such absolute immunity in this State extends to county and municipal officials in legislative or quasi-legislative activities as well as to members of the State Legislature and activities connected with State legislation.

Id. at 430.

In Hauser v. Urchisin, 231 So.2d 6 (Fla. 1970), the court held that a complaint against a city commissioner was properly dismissed. The court rejected the proposition that if an officer in a legislative department of government departs from official duty and indulges' in defamatory statements wholly irrelevant and foreign to the scope of his duties, he is not entitled to protection. The court said that under the correct statement of the law, the decisive question in the case was whether the statement by the defendant was made in connection with the performance of his duty and responsibility as a city commissioner. The court went on to comment that the public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged.

In the instant case, the appellee made his remarks while acting as County Commissioner in the process of a County Commission meeting. It seems to us that he was clearly acting in connection with his official duties and is protected by an absolute privilege. We think these remarks in Johnsen v. Carhart, 353 So.2d 874 (Fla. 3d DCA 1977), are particularly appropriate:

[T]he absolute immunity of [a public official] operates to relieve him from the necessity of being subjected to trial of an action based on his privileged conduct, notwithstanding that a complaint for libel which is filed against him may allege, as a conclusion, that he is without such immunity or .was acting beyond the scope of his duty or office, where, as in this case, the complaint and its exhibits disclose the action of the official was taken in the interest of the public good and thereby within the scope of his duties and responsibilities, notwithstanding the allegations in the complaint to the contrary.

Id. at 876.

We hold, therefore, that an absolute privilege protects the appellee from any liability to the appellant for the allegedly defamatory remarks made at the County Commission meeting in question. The trial judge was correct in dismissing the appellant’s complaint with prejudice.

AFFIRMED.

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


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

text:
    Kevin M. EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. AK-259.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.

      William W. Corry and Dana C. Mathews, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace A. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Everett appeals his conviction and sentence for vehicular homicide and attempted leaving the scene of an accident. Appellant has raised several points on appeal, only two of which merit discussion. Appellant argues that the trial court erred in refusing to grant appellant’s requested jury instructions on jay-walking and in refusing to allow evidence of decedent’s blood alcohol level. We find that the trial court committed no reversible error and affirm.

Everett was a student at Tallahassee Community College. On Wednesday, April 1, 1981, Everett and four other boys spent the evening at Tommy’s Deep South Music Hall on the West Tennessee Street strip in Tallahassee. Three pitchers of beer were ordered during the evening and consumed among the five boys. Everett testified that he consumed approximately four or five glasses of beer. There was testimony that Everett was “nursing” his beer that evening. During a band break, at approximately 10:30 P.M., the five boys walked out to the parking lot at Tommy’s and shared a single “joint” of marijuana. Everett was observed to take two or three puffs. Three of the boys, Everett, his brother Scott, and Valdeen Fletcher, left Tommy’s around 12:30 or 1:00 A.M. April 2, 1981. Everett testified that he was not intoxicated at that time either from alcohol or from marijuana. The three boys decided that Everett should drive his brother’s 1977 Chevrolet Monte Carlo. Although Everett’s driver’s license restricts him to driving only while wearing his glasses, he was not wearing his glasses that evening. Everett’s vision without glasses is 20/50 in each eye. It was a misty night and the inside of the windshield began to fog up because Scott and Valdeen lit cigarettes upon leaving the parking lot. Everett testified, however, that the defroster and windshield wipers were turned on, the inside of the windshield was wiped, and that it was clear. The boys proceeded down West Tennessee Street at about 35-40 miles per hour. The speed limit in that section was 35 miles per hour.

At the 600 block of West Tennessee Street, the Monte Carlo driven by Everett struck and killed Allen Brent England, who was attempting to cross Tennessee Street in front of the Brew and Cue Bar. England was not walking in an authorized pedestrian crosswalk, nor was he in a lighted area. Witnesses saw him step off the curb and proceed directly toward the median. Other witnesses said England could have avoided being struck if he had continued walking and had not stopped before reaching the median. Everett saw England only a split second before the impact. Valdeen “heard a thump” and said, “Kevin, I think we hit something. I think someone has been hit.” Everett said, “Oh, my God.”

After the impact Everett did not immediately stop, but drove to the next intersection and drove around the block. Officer Wooten, in a marked patrol car, had become alerted to the situation and followed Everett’s Monte Carlo. Officer Wooten testified that the patrol car’s blue and red flashing lights were activated, but the Monte Carlo did not pull over. Instead, the Monte Carlo proceeded back to the scene of the accident with the patrol car following. Once stopped, Officer Wooten approached Everett’s vehicle and asked Everett to step out. Officer Wooten detected an odor of alcohol on Everett and placed him under arrest for driving under the influence. Everett testified that he was in a state of shock and had taken the shortest route possible back to where the impact occurred.

Everett was charged with manslaughter driving while intoxicated (DWI), manslaughter by culpable negligence, and leaving the scene of an accident. At the trial, the court granted appellant’s motion in li-mine to exclude the results of a breathalyzer test conducted on appellant, but the court denied appellant’s motion to exclude evidence pertaining to marijuana. The jury found Everett not guilty of manslaughter DWI, guilty of vehicular homicide (a lesser included offense of manslaughter by culpable negligence), and guilty of attempted leaving the scene of an accident (a lesser included offense of leaving the scene of an accident). The trial court placed Everett on five years probation.

Appellant argues that the trial court erred in not giving appellant’s requested jury instructions on jay-walking. Evidence introduced at trial tended to show that the decedent was jay-walking and that under the circumstances of this case the jay-walking was a significant factor in the accident. Appellant argues that decedent’s conduct may be a factor in demonstrating the absence of culpable negligence. Appellant cites Peel v. State, 291 So.2d 226 (Fla. 1st DCA), cert. denied, 298 So.2d 164 (Fla.1974), to support this argument. In Peel, this court found reversible error where the trial court failed to give a requested jury instruction on vehicles being driven on the left side of the roadway when approaching within 100 feet of or traversing any intersection. The jury in Peel could have found that decedents’ automobile was in the left side of the roadway within 100 feet of the subject intersection and, thus, could have found the negligence of decedents to be solely responsible for the accident.

We are unable to agree with appellants, however, that the instant case involves a situation similar to Peel. In Filmon v. State, 336 So.2d 586 (Fla.1976), appeal dismissed, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977), the court discussed the proper test for determining whether the trial court has erred in refusing to give instructions concerning the negligence of decedents in prosecutions for manslaughter by culpable negligence. The court stated that the conduct of decedents can only be controlling if it were the sole proximate cause of the accident. Where there is no view of the evidence upon which the jury can reasonably conclude that the acts of decedents are the sole proximate cause of the accident, it is not error to deny jury instructions based on the actions of decedents. In the instant case, it is clear that the conduct of decedent contributed to his own demise. We do not believe, however, that a jury could reasonably conclude that decedent’s conduct was the sole proximate cause of the accident. Viewing the testimony in a light most favorable to appellant, appellant had been drinking, smoking marijuana, and driving without glasses which he is required by statute to wear. It is difficult to imagine that these factors played no part in the accident. Therefore, under Fil-mon, the trial court did not err in denying the requested jury instructions.

Appellant also argues that the trial court committed reversible error in refusing to admit evidence of the decedent’s blood alcohol level. The trial court found the evidence to be inadmissible hearsay because appellant could not prove that the chemical testing of decedent’s blood was done in accordance with the rules and regulations of the Department of Health and Rehabilitative Services. Appellant contends that the evidence fell under the public records exception to the hearsay rule and cites Smith v. Mott, 100 So.2d 173 (Fla.1958).

We need not decide this hearsay question, however, since the decision of the trial court, if error, is harmless. Where an error does not affect a constitutional right, the reviewing court will find it harmless unless it is likely that, but for the erroneous ruling, the result would have been different. Palmes v. State, 397 So.2d 648 (Fla. 1981), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). The jury in the instant case had evidence before it that decedent had spent most of the evening at Bullwinkle’s, another Tennessee Street bar, and that he had been drinking wine. Therefore, it is unlikely that the outcome of this case would have been different had the trial court admitted the blood alcohol evidence. •

Accordingly, the judgment is AFFIRMED.

WIGGINTON, J., concurs.

ROBERT P. SMITH, Jr., J., specially concurs with opinion.

ROBERT P. SMITH, Jr., Judge,

concurring specially.

I concur in the court’s decision to affirm Everett’s convictions for vehicular homicide in the death of pedestrian England, section 782.07, Florida Statutes (1981), and for attempting willfully to leave the scene of the accident, sections 316.027(2), 775.081(1), 777.04(4)(d), Florida Statutes (1981). I agree also that the circuit court did not err in refusing to charge the jury, as requested by Everett, in terms of various statutes regulating pedestrians crossing the streets. However, I would justify the refusal of these charges on a somewhat different ground than that which my colleagues draw, quite accurately I must say, from Filmon v. State, 336 So.2d 586 (Fla.1976), and Peel v. State, 291 So.2d 226 (Fla. 1st DCA 1974).

Let us be quite clear about the instructions requested by Everett. There were four, each copied verbatim from a statute regulating pedestrian behavior in crossing a roadway:

Requested instruction No. 12: A crosswalk is that part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway, measured from the curb, or in the absence of curbs, from the edges of the traversable roadway or any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface. [§ 316.-003(6)(a) and (b), Fla.Stat. (1981).]
Requested instruction No. 14: No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. [§ 316.130(8), Fla.Stat. (1981).]
Requested instruction No. 15: Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an in-" tersection shall yield the right-of-way to all vehicles on the roadway. [§ 316.-130(10), Fla.Stat. (1981).]
Requested instruction No. 16: Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk. [§ 316.130(11), Fla. Stat. (1981).]

Peel and Filmon hold that instructions such as these should be given if the jury could conclude from the evidence that the decedent’s conduct, arguably in violation of these statutory standards, was the sole proximate cause of the collision and his death, or, put another way, if the jury could have concluded that the defendant’s alleged driving recklessness was no proximate cause at all. Otherwise, Peel and Filmon hold, the instructions should not be given.

Peel and Filmon carry the trial judge, settling instructions in the charge conference, and the appellate court, reviewing convictions in which such instructions are not given but not acquittals in which they are given, into difficult analytical terrain.

It is clear, first, that what is required is a weighing of the evidence on proximate cause. Except for purposes of considering a motion for judgment of acquittal or a motion for new trial, this function ordinarily is that of juries, not that of judges. Moreover this judicial weighing of the evidence and its inferences occurs in the trial court at a most unlikely stage of the proceedings, after the court has already denied defense motions at the close of the state’s evidence, and again at the close of all evidence, for judgment of acquittal. As those motions will have been denied because the evidence, taken in a light most favorable to the state, was judged sufficient to support a jury finding beyond a reasonable doubt that the defendant’s recklessness was a proximate cause of the decedent’s death, and that the latter’s violation or neglect of regulatory statutes applicable to him was not the sole cause of his death, it is not clear from Peel and Filmon what additional decision is required of the trial judge as a predicate for giving or refusing the defense-requested instructions on statutes applicable to the decedent.

In Peel, it should be noted, this court viewed the causation evidence in a light favorable to the accused: “This statute would only be relevant to this case if the jury had believed appellant’s version of the accident .... ” 291 So.2d at 228. But Fil-mon, finding that the requested instructions in that case were properly denied, appears to discuss the evidence “in a light most favorable to the State .... ” 336 So.2d at 588, 590. Admittedly, Filmon went on to say that “there is no view of the evidence upon which the jury could have reasonably concluded that the decedents’ asserted act of failing to yield the right-of-way was the sole proximate cause of the accident.” 336 So.2d at 591. But as the defendant’s testimony or view of the evidence was not recited in Filmon, as it was in Peel, the two decisions are difficult to reconcile, and together they offer no clear standard for giving or refusing the requested instructions.

More fundamentally incongruous than this judicial evaluation of proximate cause questions, Peel and Filmon appear to predicate the giving or refusal of such instructions on the strength of the state’s evidence that the accused, by speeding, erratic driving, intoxication, and the like, was wanton and reckless in his driving. If the prosecution’s case is weak or close, it appears that the instructions are to be given, but not otherwise. This seems to me a doubtful equation. The culpability of the defendant’s conduct surely is to be determined in light of all the circumstances, including those created by the decedent’s conduct; but whether the decedent’s conduct violated a traffic statute seems to me an entirely different question, related not to the culpability of the defendant’s conduct, nor to its causative effect, but to the quality of the decedent’s conduct. Moreover, if charging on the quality of the decedent’s conduct is of use to the defense, which I do not doubt, it seems odd to grant the defendant that advantage when he needs it least and to deny it when needed most.

Filmon ’s decisive rationale appears to be this:

Appellant’s additional contention that the conduct of the decedent somehow bears upon the wantonness or recklessness of his acts is not persuasive. The acts of the decedent can neither add to nor detract from the quality of appellant’s conduct. [336 So.2d at 591.]

This statement almost proves too much. If for purposes of granting or denying a requested defense charge it is deemed irrelevant that the decedent jaywalked into the path of defendant’s vehicle and, let us say, lay down drunk in the street, then that proof would also seem irrelevant, except as it is unavoidably and narrowly adduced to show that a fatal accident in fact occurred. Yet we know this proof is not irrelevant. 1 Wharton’s Criminal Law § 47 (14th ed. 1978):

It is no defense or excuse in a prosecution for a crime that the victim was con-tributorily negligent. However, the victim’s negligence is relevant on the question whether the defendant was himself guilty of criminal negligence and, if so, whether such negligence was the proximate cause of the victim’s injury or whether such injury was caused solely by the victim’s negligence.

See also 3 Wharton’s Criminal Law and Procedure § 986 (1957).

In my opinion the requested instructions in this case were properly denied, and they are properly to be denied in all such cases, Peel and Filmon included, because though the decedent’s conduct is relevant his violation of a traffic statute is not. The matter in issue before the jury is whether the defendant was culpably negligent and whether that recklessness contributed as a legal cause of the accident and ensuing death. Those precise questions do not call for subsidiary decisions on whether the decedent’s careless conduct, relevant though it is, violated statutes against jaywalking, against driving in the wrong lane, or against speeding. Whether the decedent violated statutes such as section 316.003 and .130, invoked in this case, would be pertinent only if the decedent were to be charged with those violations, see section 316.655, Fla.Stat. (1981), or if, as in a civil action, the decedent’s contributory negligence is a matter directly in issue. But in motor vehicle homicide prosecutions, contributory negligence is no defense as such, and the verdict is no finding on such an issue. State v. Redden, 269 So.2d 415, 417 (Fla. 2d DCA 1972):

Redden also argues that if the child had not run into the road the accident would not have occurred. This argument is fallacious. What is charged here is Redden’s culpable negligence, and the deceased’s conduct may be a factor ... in demonstrating the absence of culpable negligence, but contributory negligence is no defense. In Russ v. State, 1939, 140 Fla. 217, 191 So. 296, the deceased was walking across a busy highway, and it was shown that the defendant had driven off the road in an effort at avoidance. Only an allegedly excessive speed grounded the charge of culpable negligence. The Supreme Court stated (191 So. at 299), “the deceased when crossing the highway was charged with the exercise of such care as was necessary for her own self preservation.” That dictum is unfortunate if it encourages belief in a “but for” rule in manslaughter prosecutions. Of course the deceased’s conduct may be relevant to the question of culpable negligence on the defendant’s part, but it would not even be a valid defense in a civil action founded on gross negligence, which is of lesser degree than culpable negligence.

See also Graives v. State, 127 Fla. 182, 172 So. 716 (1937); 3 Wharton’s Criminal Law and Procedure § 986 (1957):

It would appear as an abstract matter that, if the defendant is to be found guilty on the basis that he was merely negligent in the ordinary civil liability sense, fairness requires that the contributory negligence of the victim be a bar to criminal responsibility. In those instances in which the defendant’s negligence was in fact more than mere civil negligence, the general criminal rule [barring proof of contributory negligence, as such] should continue to prevail.

Such instructions as were requested in this case are correctly understood, both by experienced trial lawyers and by jurors, as a judicial endorsement, oblique and restrained though it may be, of defense arguments upon other matters directly in issue. In a time when judicial commentary favoring the prosecutor’s view of the evidence seems increasingly fashionable, e.g., Whitfield v. State, 433 So.2d 1285 (Fla. 1st DCA 1983), there is some irony in my restrictive view of appropriate defense instructions and some rough justice in the notion that “balancing” the charge, by such instructions as these, is appropriate if not essential. Though I recognize that denying judicial argumentation to the defense will not deny it to the prosecutor, Smith v. State, 394 So.2d 407 (Fla.1981), I would not extend the practice further than Supreme Court decisions explicitly require it.

Because I consider that this pedestrian’s conduct was relevant in the determination of the defendant’s culpability and its causative effect in the pedestrian’s death, I think the pedestrian’s alleged intoxication, influencing his conduct, was also within the bounds of relevancy. But in my opinion the trial court did not err in excluding the proffered testimony of a physician concerning the alcohol content of the pedestrian’s blood, since that testimony was predicated upon a test analysis document, prepared by another, which was not authenticated by a person having knowledge as a document admissible under section 90.803, Florida Statutes (1981).

If my views on the Peel-Filmon issue were to prevail in this court, I would recognize that the resulting decision expressly and directly conflicts with a fair reading of Filmon, in hopes that the Supreme Court would accept jurisdiction, art. V, § 3(b)(3), Fla. Const., either to correct this misunderstanding of the law or to reexamine the implications of Fiimon.


author: MILLS, Judge.

text:
    Eugene Conrad SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AO-146.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.

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

Smith was charged with aggravated battery. The jury found him guilty of improper exhibition of a firearm, a lesser included offense. He contends the trial court erred in charging the jury on the lesser included offense and in denying his motion for arrest of judgment. We affirm.

Improper exhibition of a firearm is a category 2 lesser included offense of aggravated battery which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Florida Standard Jury Instructions in Criminal Cases, 2d Ed., pages 257 and 260.

To determine if an offense is properly charged as a category 2 included offense, one looks at the information to determine if all the essential elements of the lesser offense are charged and if the proof supports the allegations. James v. State, 386 So.2d 890 (Fla. 1st DCA 1980).

Smith contends the elements of the lesser included offense are not included in the charge. The charge alleges that Smith committed a battery on Johnson by shooting at Spencer. He does not contend there is a failure of proof.

The issue is whether “by shooting at” alleges “exhibition.” We conclude that it does. Firing the pistol makes its presence and character known to all. There is no doubt that a bullet from the pistol struck Johnson.

The trial judge did not err in giving the charge or in denying the motion.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


author: ZEHMER, Judge.

text:
    David Leon BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. AO-267.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.

      Gwendolyn Spivey, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

David Leon Bradford appeals from a judgment revoking his probation and sentencing him to imprisonment on charges of uttering a forged instrument. We find that appellant was deprived of due process, and reverse.

In September 1981, appellant pleaded guilty to uttering a forged money order in the amount of $50 and was placed on two years probation. One of the standard conditions of probation required that:

You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.

In March 1982, appellant was charged with violating his probation as follows:

[T]he probationer has not properly conducted himself, but has violated the conditions of his probation in a material respect by:
I. By failing to live and remain at liberty without violating any law, in that on December 5, 1981, the probationer did unlawfully traffick [sic] in, or endeavor to traffick [sic] in certain property, to wit: a 1965 Ford Mustang, vehicle # 5F07T616229, the property of George Byrd as owner or custodian, which the probationer knew or should have known was stolen, as attested to by officer Jim Leath of the Pensacola Police Department in Pensacola Police Department Arrest Report # 88265.

In June 1982, appellant pleaded nolo con-tendere to a charge of grand theft, presumably arising out of the same circumstances alleged as the violation of probation, and was adjudicated guilty. During a sentencing hearing in September 1982, at which appellant was sentenced to five years imprisonment on the grand theft charge, the state prosecutor suggested to the trial judge that time could be saved if the court also considered appellant’s alleged violation of probation at the same time. The prosecutor specifically conditioned his suggestion on the assumption that the trial judge would impose a sentence for uttering a forged instrument that would run concurrently with the five-year sentence for grand theft. Appellant’s attorney stated that he would agree to the prosecutor’s suggestion only if appellant would receive a concurrent sentence. When the trial judge declined to promise a concurrent sentence, appellant’s counsel objected to having the probation revocation hearing at that time because appellant had not been allowed sufficient notice to prepare. The record indicates that both the state prosecutor and the appellant’s counsel had expected the probation revocation hearing to be held at a time subsequent to the sentencing hearing.

Despite the appellant’s objections, the trial court revoked his probation based upon the adjudication of guilt from the nolo con-tendere plea and sentenced him to three years in prison on the original charge of uttering a forged instrument, such sentence to run consecutively with the five-year sentence on grand theft.

Appellant contends, among other things, that he was denied due process of law because (1) he was not given proper notice of the revocation hearing; (2) he was not allowed to put on evidence of mitigating circumstances; and (3) he was deprived of the opportunity to confront and cross-examine witnesses against him. Appellant also contends that the trial court erred in basing the revocation solely on his nolo contendere plea without considering further evidence regarding that offense and the circumstances of the plea. He cites Donaldson v. State, 407 So.2d 623 (Fla. 5th DCA 1981), for the proposition that the court must allow appellant to explain the circumstances of his plea and, if the appellant maintains his innocence, must make a specific inquiry into whether appellant did, in fact, violate his probation.

The state, on the other hand, contends that any deprivation of appellant’s due process rights was harmless error because the adjudication of guilt on appellant’s nolo contendere plea is a per se violation of the probation requirements. The state’s brief does not otherwise address the serious due process points presented by appellant.

Although appellant is not entitled to the full panoply of due process rights in a probation revocation proceeding, he must be properly charged and given a hearing, after reasonable notice, where he is entitled to present evidence that the charged violation did not occur or that mitigating circumstances exist which suggest 'that the probation should not be revoked. Rule 3.790, Florida Rules of Criminal Procedure; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Bernhardt v. State, 288 So.2d 490 (Fla.1974). Unless both parties consent, the revocation hearing should not be held at the same time as the trial or sentencing hearing on the charge constituting the alleged violation of probation. State v. Spratling, 336 So.2d 361 (Fla.1976).

In the present case, appellant was charged with violating probation by trafficking in stolen property, but revocation of his probation was based on the adjudication of his guilt on the grand theft charge. While this discrepancy would not necessarily require reversal, Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980), it is abundantly clear that appellant was otherwise denied significant due process rights when the trial court proceeded with the revocation hearing without prior notice and over appellant’s strong objections. The record shows that appellant was deprived of any opportunity for discovery regarding the probation officer’s report and recommendation that was explicitly relied upon by the court. Appellant was not permitted to cross-examine on such report, nor was he afforded any opportunity to prepare and present evidence in defense or mitigation of the revocation charge.

Both parties have argued the relative merit and applicability of the Fifth District Court’s decision in Donaldson v. State, 407 So.2d 623 (Fla. 5th DCA 1981), to the circumstances in this case. We decline to accept the broad interpretation of the Don aid-son opinion urged by appellant and prefer to strictly limit Donaldson to the facts presented in that case. We accept the reasoning of the Second District Court in Maselli v. State, 425 So.2d 176 (Fla. 2d DCA 1983), which holds that a conviction based upon a nolo contendere plea, standing alone, may be sufficient evidence to sustain a court’s decision to revoke probation. As we read the Maselli opinion the Second District did not hold that a conviction based on a nolo contendere plea constitutes a conclusive determination that probation should be revoked as a matter of law; rather, it held that evidence of such conviction is legally sufficient to establish a violation of probation. Nevertheless, defendant must be given a fair opportunity to respond with evidence of mitigating circumstances suggesting that such conviction does not warrant revocation.

The judgment revoking probation and sentencing appellant on the charge of uttering a forged instrument is reversed. This case is remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.

      . Section 831.02, Florida Statutes (1981).

      . Because the record on appeal fails to contain any documentation of the grand theft charge, we cannot be certain of the relationship between that charge and the allegations charging the violation of probation.

      . The trial court did ask if appellant had anything to say before the court passed sentence for uttering a forged instrument, but that inquiry did not provide sufficient opportunity to present mitigating circumstances.

      . Maselli was decided in January 1983, after the state’s brief was filed in December 1982, and was not cited to us. However, Rule 9.210, Florida Rules of Appellate Procedure, provides for the filing of a notice of supplemental authority. We encourage all appellate counsel to monitor recent decisions of the Florida appellate courts and to submit applicable or controlling decisions under this rule. Doing so will allow us to more expeditiously dispose of appeals.


text:
    Hezekiah McCLINTON, Appellant, v. ROYAL MOVING & STORAGE, Michigan Mutual Insurance Company, Appellees.
    No. AO-444.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.

      Douglas E. Daze of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellant.
    Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   MILLS, Judge.

In this workers’ compensation case, Hezekiah McClinton has requested that we reverse the Deputy Commissioner’s order denying his claim for temporary total and partial disability benefits, costs, penalties, and fees. We decline to do so.

McClinton injured his back on 25 February 1981 while moving a load of books in the course of his employment with Royal. At the hearing on McClinton’s claim, the Deputy Commissioner heard testimony from McClinton and two employees from Royal. He also received the depositions of three orthopedic surgeons who examined McClinton. In his order, the Deputy Commissioner dismissed McClinton’s claim with prejudice, finding that he had reached MMI on 31 March 1981; that he had been released by the doctors to return to work with no restrictions that McClinton had returned to work in odd jobs that required heavy lifting; and that McClinton had made several contradictory statements at the hearing, which impeached his credibility.

First, McClinton contends that by dismissing his claim “with prejudice,” the Deputy Commissioner has foreclosed any proceedings on future benefits that may become due. There is nothing in the order to suggest that this is true. The Deputy Commissioner dismissed this particular claim for benefits with prejudice, foreclosing any future proceedings on the same claim. This he may do without conflicting with G & S Packing Company v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980) or Section 440.28, Florida Statutes (1981).

Next, McClinton claims that it was error to deny him temporary disability benefits. A review of the record reveals competent and substantial evidence to support the deputy’s findings and conclusions on this issue. We decline to re weigh the evidence to reverse. Croft v. Pinkerton-Hayes Lumber Company, 386 So.2d 535 (Fla.1980). See also, Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976); Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 (Fla. 1st DCA 1980).

Finally, McClinton requests that a new hearing be granted because the testimony of the two Royal employees was inaudible and, therefore, not in the record, preventing adequate appellate review. Lieber v. Morris Lieber, Inc., 168 So.2d 313 (Fla. 1964). In Lieber, however, the entire transcript was lost. Here, only a portion of the testimony was lacking in the transcript. Additionally, the record contains a statement signed by McClinton and his counsel stipulating to the inaudible testimony. Further, McClinton has not demonstrated how the omission of such testimony from the record has prejudiced him. We, therefore, view this point to be without merit.

For the reasons stated above, the order of the Deputy Commissioner is affirmed. Accordingly, the petition for attorney’s fees is denied.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


author: SHIVERS, Judge.

text:
    DEPARTMENT OF HEALTH & REHABILITATIVE SERVICE/DIVISION OF BLIND SERVICES and Division of Risk Management, Appellants, v. Amy BEAN, Appellee.
    No. AQ-69.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    C. Anthony Schoder, Jr., Daytona Beach, for appellants.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
   SHIVERS, Judge.

We have for review an order of the deputy commissioner (DC) awarding claimant’s attorneys a fee of $50,000.00 for legal services rendered in securing claimant compensation benefits. We reverse.

To comport with the requirements of law, an order awarding attorney’s fees must indicate what factors were considered in determining the amount of the fee. Specifically, the order must contain findings of fact indicating which criteria set forth in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), were considered and how they were applied. An appellate court is not required to review the record and speculate on the basis of the award. Casings, Florida, Inc. v. Williams, 389 So.2d 705 (Fla. 1st DCA 1980). In this case, the order merely states that the factors in Lee Engineering were considered, without making any findings indicating how those factors applied or upon what factor(s) the fee award was based. Moreover, the order fails to set forth any finding as to the amount of benefits secured by claimant’s attorneys. Without such findings, this court is unable to give the fee award issue meaningful review. On this basis, we reverse and remand the matter to the DC for entry of a proper order. See Sherwood Medical Industries v. Ward, 397 So.2d 396 (Fla. 1st DCA 1981); Casings, supra; State v. Caldwell, 388 So.2d 640 (Fla. 1st DCA 1980); Manny’s Dresses v. Arias, 390 So.2d 1241 (Fla. 1st DCA 1980). We express no opinion on the other issues raised on appeal, all of which relate to the fee award.

REVERSED and REMANDED.

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


text:
    Diamond Derek MONTGOMERY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-929.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal & Darby, Miami, and Joseph Durant, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant Diamond Derek Montgomery appeals his conviction and sentence entered below for the crime of first degree murder. The sole point on appeal is that the trial court erred “in ruling that the defendant’s [oral] confession [to the police] was knowingly and voluntarily made” and in thereafter admitting the said statement in evidence over proper defense objection. We have carefully reviewed the testimony in the record in this case and have concluded that there was sufficient evidence upon which the trial court could have concluded, as it did, that the defendant’s statement herein was freely and voluntarily given. See Stone v. State, 378 So.2d 765, 769-70 (Fla.1979). The judgment of conviction and sentence under review is, accordingly,

Affirmed.


author: NESBITT, Judge.

text:
    Demetrio SOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1899.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Calvin Fox, Asst. Attys. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The defendant appeals his conviction for attempted robbery alleging that the court erred in denying his motion for mistrial based on the prosecutor’s impermissible comments on the defendant’s right to remain silent. We reverse.

The following colloquy took place during the prosecutor’s direct examination of the arresting officer:

PROSECUTOR: After you had advised Sosa of his rights, did he make any statements to you at the scene?
OFFICER: No, not at the scene.
DEFENSE COUNSEL: Objection, request a side bar.
THE COURT: No, he already answered the question.
DEFENSE COUNSEL: I have a motion I would like to make and I need the side bar.
THE COURT: The answer is no, simple as that.
PROSECUTOR: Where did this — Did you have a chance to interview him?
OFFICER: We didn’t even interview him because we caught him and it was really no questions to ask him. There was no question in our mind that he did it or didn’t do it.
DEFENSE COUNSEL: Objection, move to strike. He is not an expert.
THE COURT: I will strike .it, but he answered the question.
PROSECUTOR: Did he volunteer any statements to you at the station?
OFFICER: We were sitting there. He kept talking about—
DEFENSE COUNSEL: Objection, I request a side bar at this point.
THE COURT: Sustained.
(Sidebar)
DEFENSE COUNSEL: First, I move for a mistrial. The State elicited from this witness the fact that he was given his rights. There was a question as to whether Mr. Sosa said anything and he said “no”. It’s a matter of law that—
THE COURT: That’s denied.

As to the first comment, we find that counsel’s motion for a sidebar was an insufficient method by which to preserve the right to appeal this point. See Judge Pearson’s special concurrence in Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982).

The defendant fares better on his claim with respect to the second comment only because the trial judge consented to a sidebar at which time defense counsel made a motion for a mistrial. That motion preserved the issue for our review.

The state relies on Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977), cert. dismissed, 372 So.2d 64 (Fla.1979), to argue that the prosecutor’s comment was proper. In Williams, the prosecutor was seeking to introduce the defendant’s statement into evidence. The court found:

The crucial aspect of the challenged testimony is that it was not elicited to show that the defendant did not say anything at that time. The importance of the testimony is the fact that the defendant responded that she was willing to answer questions, and willing to waive her right to remain silent.

353 So.2d at 590. The present ease is readily distinguishable because the trial court had previously ruled that the defendant’s statement was inadmissible. Therefore, it clearly appears that the only purpose to be served by the prosecutor’s question was to prejudice the defendant.

Accordingly, we reverse and remand for a new trial.


text:
    CITY OF MIAMI, Appellant, v. Constance SINQUEFIELD, Appellee.
    No. 82-2053.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The trial court erred in not directing a verdict for the defendant municipality in a negligence action seeking a recovery of damages for injuries allegedly incurred when an automobile struck a “pothole” in a street. It was never pled nor proved that the plaintiff gave the municipality the required notice under Section 768.28(6) Florida Statutes (1976). Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979).

The final judgment under review is reversed and the cause remanded to the trial court with directions to enter judgment for the municipality.

Reversed and remanded with directions.


text:
    Francisco PONS-PEREZ a/k/a Jose Luis Suraz, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2111.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Bennett H. Brummer, Public Defender, and McGhee & Sharpe, and Vincent McGhee, Sp. Asst. Public Defender, for ap-pellee.
    Jim Smith, Atty. Gen., and Marti A. Roth-enberg and Calvin L. Fox, Asst. Attys. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 407 So.2d 279 (Fla. 3d DCA 1981).


author: BASKIN, Judge.

text:
    Billy Ray ALFREY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2205.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Bennett H. Brummer, Public Defender and William Kuypers, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

During the hearing on appellant’s motions to suppress and to dismiss, his counsel stipulated that the issues were dispositive and that he would not need a jury. The state argues that by these actions appellant’s counsel waived appellant’s right to a speedy trial. Fla.R.Crim.P. 3.191. We disagree. See State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977).

Reversed and remanded with directions to discharge appellant.


author: BARKDULL, Judge.

text:
    BLAIR HOUSE SOUTH, A Condominium, Appellant, v. ALL FLORIDA PAINT STORE, INC. and Coronado Paint Company, Inc., Appellees.
    No. 82-2378.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.

      Wilbur G. Silverman, for appellant.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael Spring, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

A condominium association decided to have the buildings of the condominium painted. Pursuant to this purpose it went to All Florida Paint Store, Inc. to purchase the paint and it was determined to use, upon All Florida’s recommendation, paint manufactured by Coronado Paint Company, Inc.

Subsequent to the paint being applied, the association was unhappy with its appearance and commenced an action for damages alleging breach of express warranty, of implied warranty of fitness and of implied warranty of merchantability. The trial court directed a verdict on the first two causes of action and submitted the action to the jury on the alleged breach of the implied warranty of merchantability. The jury returned a verdict in favor of the defendants and this appeal ensued.

The defendant’s defense in part was that the paint was improperly applied. After defendants rested, the plaintiff sought to offer rebuttal testimony in “regards to the defendants’ witnesses that this paint was not properly applied”. The trial court refused to permit the use of rebuttal witnesses. We find this to be error. The defense as offered was in the nature of a confession and an avoidance which was a recognition that there was a problem of discoloration after the paint was applied but that this was caused by employees of the plaintiff who improperly applied the paint. With this defense the plaintiff should have been permitted to adduce evidence on rebuttal that the paint was, in fact, properly applied. Atlantic Coast Line Railroad Company v. Watkins, 97 Fla. 350, 121 So. 95 (1929); Seaboard Air Line Railroad Company v. Myrick, 91 Fla. 918, 109 So. 193 (1926); Ahearn v. Florida Power and Light Company, 113 So.2d 751 (Fla. 2d DCA 1959) quashed on other grounds Florida Power and Light Company v. Ahearn, 118 So.2d 21 (Fla.1960); 32 Fla.Jur., Trial § 45.

Therefore the final judgment on the jury verdict be and the same is hereby reversed and the matter is returned to the trial court for a new trial.

Reversed and remanded.

      . On the state of the evidence at the time of the directed verdicts on the first two counts, we find no error in these rulings by the trial court.


text:
    JOA CORPORATION, Appellant, v. LAMERICA REALTY COMPANY OF MIAMI, Appellee.
    No. 82-2427.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.

      Frank R.S. Fabre, Coral Gables, for appellant.
    Ruben L. deLeon, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Appellant herein, defendant in the trial court, seeks review of an adverse final judgment entered by the trial court, sitting as trier of the fact, in a case wherein the appellee sought damages for breach of a real estate brokerage contract.

The appellant has raised 5 points on appeal all of which go either to the question of whether the appellee was hired to complete the sale and whether it produced a buyer ready and willing to purchase the property. The trial court’s ruling was predicated in part on the testimony of the parties which was neither reported or filed in this court. Thus this court is unable to review the correctness of the order appealed and therefore the final judgment here under review is affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Lang v. Lang, 416 So.2d 480 (Fla. 4th DCA 1982); Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1981).

Affirmed.

      . Pursuant to Rule 9.200(f)(2), Fla.R.App.P., we entered an order directing the appellant to complete the record on appeal in accordance with Rule 9.200(a), (b), (f), Fla.R.App.P. Notwithstanding this order the appellant failed to supplement the record with any testimony or statement pursuant to applicable appellate rules.


text:
    Marshall GRABEL, Appellant, v. Joan GRABEL, Appellee.
    No. 82-2550.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellant.
    Jerry A. Bums, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA), rev. denied, 392 So.2d 1378 (Fla.1980).


text:
    Fritz DOMINIQUE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-87.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Kalter & Kutner and Robert Kalter, Miami, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Fritz Dominique appeals a manslaughter conviction entered upon return of a jury verdict of guilty. According to the evidence, Placid, a. guest at a party Dominique was attending, threatened to kill him. Placid was escorted to his car after being asked to leave the party; he screamed that he would come back and get Dominique. As Dominique retrieved a loaded gun from the glove compartment of his own car, someone grabbed his arm. The gun discharged, fatally injuring a close friend of Dominique’s. Dominique and other guests immediately took the victim to the hospital.

Manslaughter is defined by 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.... ” Culpable negligence, which replaces the element of criminal intent, Hulst v. State, 123 Fla. 315, 166 So. 828 (1936), means action of such a gross and flagrant character that it evidences a reckless disregard for human life or safety equivalent to an intentional violation of the rights of others. McCray v. State, 350 So.2d 1126 (Fla. 2d DCA 1977). Culpable negligence must be determined from the facts peculiar to the case. Scarborough v. State, 188 So.2d 877 (Fla. 2d DCA 1966). Examining the facts before us in light of Parker v. State, 318 So.2d 502 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976); Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1966), cert. denied, 193 So.2d 679 (Fla.1967); and Sharp v. State, 120 So.2d 206 (Fla. 2d DCA 1960), we fail to find the establishment of culpable negligence beyond a reasonable doubt.

Homicide is excusable according to section 782.03, Florida Statutes (1981), when committed by accident, in the heat of passion, upon any sudden provocation. We find that the facts under consideration fall within the definition of excusable homicide. Consequently, we reverse the conviction and remand the cause for entry of a judgment of acquittal.


text:
    MONUMENTAL LIFE INSURANCE COMPANY, Appellant, v. COMMONWEALTH LAND TITLE INSURANCE COMPANY, Appellee.
    No. 83-351.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Stephen M. Corse, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Thomas B. Bo-urque, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

As part of negotiations leading to the increase in a debt secured by a mortgage on certain real property (which property was subject to an outstanding lease which contained within its terms an option to purchase the fee) the mortgagee, Monumental, required a deposit of certain funds to indemnify it from possible loss because of a provision in the original mortgage relating to a reduction in certain prepayment penalties upon a change of title. The understanding of parties and the establishment of the deposit or escrow is reflected in a letter agreement which reads as follows:

“The new Promissory Note in the amount of $1,250,000.00, contains a provision to the effect that in the event that Nicholas H. Morley exercises that certain Option Agreement dated the 20th day of May, 1974, the prepayment penalties pertaining to said loan will thereupon decrease.
Therefore, in consideration of the undersigned’s issuing the mortgagee title policy to you, [Monumental] and as an inducement for you to enter into the Modification Agreement and accept the new Promissory Note in the sum of $1,250,000.00, as aforesaid, the undersigned does hereby irrevocably agree that upon notification from you that Nicholas H. Morley has exercised his option to purchase under the Option Agreement dated May 20, 1974 that upon your demand, the undersigned shall forthwith remit to you the sum of $10,162.00.
It is further understood that such payment to you shall be unconditional and shall not be modified, nor shall there be any reimbursement to the undersigned by you, irrespective of whether the purchase by Morley is in actuality consummated, or whether Morley chooses to prepay the principal obligation of your Promissory Note at or prior to maturity.”

Subsequent to the execution of the letter agreement and the deposit of the funds, the option to purchase was exercised by Morley’s successors. However, notwithstanding the express terms of the letter contract to the contrary, the deposit was delivered to the original mortgagor, lessor, Florida East Coast Properties, Inc. and not to the mortgagee, Monumental Life Insurance Company. Monumental then brought a lawsuit against Commonwealth Land Title Insurance Company for breach of the escrow arrangement. The trial court found the agreement to be ambiguous and accepted oral evidence, that notwithstanding the written provisions of the deposit agreement, it was conditioned on the lessee-optioned-purchaser announcing its intention as to whether or not it would prepay the underlying mortgage. This appeal ensued. We reverse.

There is no ambiguity in the agreement. It is clear in its terms that when the option was exercised, the deposit was to be paid to Monumental, the mortgagee. Any oral understanding or negotiations prior to the execution of a written agreement are merged in the written agreement. Jacksonville Paper Co. v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890 (1941); Carlon, Inc. v. Southland Diversified Company, 381 So.2d 291 (Fla. 4th DCA 1980); Windowmaster Corporation v. Jefferson Construction Co., 114 So.2d 626 (Fla. 3d DCA 1959). Oral testimony can only be entertained to explain an ambiguity. Gulf Theatres v. Guardian Life Insurance Company of America, 157 Fla. 428, 26 So.2d 188 (1946); Carlon, Inc. v. Southland Diversified Company, supra; Donnelly v. Marriott Corp., 266 So.2d 183 (Fla. 3d DCA 1972).

Having determined that there was no ambiguity as a matter of law, compare, Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952); Continental Casualty Company v. Borthwick, 177 So.2d 687 (Fla. 1st DCA 1965); Atlas Sewing Center, Inc. v. Belk’s Department Store of West Palm Beach, Incorporated, 162 So.2d 274 (Fla. 2d DCA 1964); it was thereupon error for the trial court to accept oral testimony and vary the terms of the written agreement.

Therefore the final judgment under review is reversed and the cause is remanded to the trial court with directions to enter judgment for Monumental.

Reversed and remanded with directions.


text:
    D.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-576.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

The trial court adjudicated appellant delinquent, finding that he participated in a robbery. The evidence adduced at his hearing established that D.M. was riding in an automobile when one of five other youths in the car reached out and snatched a purse out of the victim’s hands. The car then left the scene. When the car was stopped, appellant was in the passenger seat with the purse between his legs. The contents of the purse were strewn about the front of the car. The victim testified that D.M. was not the person who snatched the purse. Appellant fled when the car was stopped.

Appellant argues that the evidence is insufficient to support the element of intent necessary for an adjudication based on robbery. Where, as here, there is no evidence that appellant actually committed the crime, he may be adjudicated only as an aider and abettor and only if the state establishes that he intended to participate in the crime. A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980). Circumstantial evidence of intent must be inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977). The evidence is circumstantial and even less compelling than the evidence we held required reversal in Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). Finding the testimony insufficient to establish either appellant’s knowledge of the crime prior to its commission, or his intent to participate in the robbery, we reverse the adjudication of delinquency.


text:
    The STATE of Florida, Appellant, v. Miguel SAGRE, Appellee.
    No. 83-776.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon, P.A., and Theodore Klein, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Where appeals in State v. Sagre, 430 So.2d 919 (Fla. 3d DCA 1983) and State v. Arroyo, 422 So.2d 50 (Fla. 3d DCA 1982) resulted in an order granting an extension of the speedy trial period under Florida Rule of Criminal Procedure 3.191 “to and including ninety (90) days beyond the receipt of the mandate of the final appellate court... ”, defendant was not entitled to be discharged on March 24, 1983 because the final appellate mandate in State v. Sagre did not issue until June 10,1983. A motion for discharge is untimely where it is presented within ninety days after the trial court receives the mandate from the appellate court. Lowe v. Price, 437 So.2d 142 (Fla.1983); Fla.R.Crim.P. 3.191(d)(3) and 3.191(g). Neither can the dismissal be sustained on constitutional speedy trial grounds because there is no showing of prejudice. State v. Nieman, 433 So.2d 572 (Fla.3d DCA 1983).

Reversed.

The Court will not entertain a Motion for Rehearing.


text:
    MIAMI BEEF COMPANY, INC., a Florida corporation, Appellant, v. HEAD-BECKHAM INSURANCE AGENCY, INC., a Florida corporation, Appellee.
    No. 83-810.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Jerome M. Rosenblum, Hollywood, for appellant.
    George, Hartz, Burt & Lundeen, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Dowd Shipping, Inc. v. Lee, 354 So.2d 1252 (Fla. 4th DCA 1978).


text:
    GREYHOUND RENT-A-CAR, INC. and Teresita Bongato, Appellants, v. Carol WEISS, Appellee.
    No. 83-1483.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Virgin, Whittle & Kray, Miami, for appellants.
    Jerold Hart, North Miami Beach, for ap-pellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

In a personal injury action, the plaintiff propounded identical interrogatories to the defendant driver and her insurer. The defendants objected to the interrogatories on the ground that they were burdensome. The trial court denied the objections and gave the defendants ten days in which to answer the interrogatories.

In Cabrera v. Evans, 322 So.2d 559 (Fla. 3d DCA 1975), we discussed the circumstances under which form interrogatories may become so burdensome as to justify sustaining a general objection thereto. It is clear that in the present case the interrogatories served upon the defendants were of the type designed to be answered by a person actually involved in the complained-of automobile accident. Thus, they were appropriate as concerns the defendant driver, but totally inappropriate as concerns her insurance company. Our examination of the interrogatories reveals that ten days is a sufficient amount of time for response by the defendant driver.

Accordingly, certiorari is granted in part and the order under review is quashed only insofar as it denies the defendant insurer’s objection to interrogatories.


author: GLICKSTEIN, Judge.

text:
    Sally Wingate UPSTILL, Appellant, v. Paul Edward UPSTILL, Appellee.
    No. 82-108.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.

      Russell E. Carlisle of Carlisle & Lecates, and Paul L. Driver, Jr., Port Lauderdale, for appellant.
    Carey M. Fischer of Ferrero, Middle-brooks & Strickland, P.A., Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

In this appeal by the former wife from the final judgment of dissolution, she contends the award to her to be inadequate. While she raises a number of points, the only one which we consider to bear addressing is with respect to the award to her of $24,000 in consideration of her having provided the former husband with $8,000, from a source outside of the marriage, with which he acquired fifty (50%) percent of the capital stock of a millwork business, the other fifty (50%) percent being owned by appellant’s brother-in-law. The record is void as to the reason, if any, for the stock having been placed in the husband’s name alone. From and after the original investment in 1965, the business flourished to the extent that it was grossing almost one-half million dollars per year. Further, because of their success, the two stockholders were able to purchase the land underlying the location of the business. This, too, was titled in the stockholders’ name only; and its value was such that the stockholders rejected a $200,000 offer of settlement in pending condemnation proceedings. We are unable to determine the trial court’s basis for achieving equitable distribution vis a vis the award of $24,000 in that there is no explanation in the judgment for the amount of the award; or recitation whether consideration was given to the value of the land acquired directly from and related to the success and operation of the business.

The broad discretion to which Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), refers does not eliminate a close, surgical analysis of the parties’ accumulated assets, which analysis must include concern for the substantial relationship between each asset and its basic root or origin. In the present case, to determine the award to the wife for her having provided the root investment for the capital stock of the business from a source outside of the marriage required consideration of (1) the value of the business; (2) the relationship between the real property in the husband’s name and the wife as the origin of the original investment; and (3) the value of that real property, it being uncontradicted that the funds for the acquisition of the property were derived from the operation of the corporate business. We therefore reverse and remand to afford the trial court the opportunity to do so and to make such findings and award as equitable distribution as those findings suggest.

DOWNEY and LETTS, JJ., concur.

      . The attorneys in a dissolution action have the obligation to provide the trial court an analysis of the parties’ assets with the same precision and clarity they would utilize in commercial litigation. This requires precise evidence as to value and origin of each relevant asset in issue.


author: DELL, Judge. LETTS, Judge,

text:
    Mildred K. MEISTER and Abraham Meister, Appellants, v. Paul FISHER, Emerald Hills Country Club, Inc., Continental Insurance Company and Allstate Insurance Company, Appellees.
    No. 82-585.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Sam Daniels and Mark Hicks of Daniels & Hicks, Miami, and Sams, Gerstein & Ward, P.A., Miami, for appellants.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees Emerald Hills and Continental Ins.
   DELL, Judge.

Mildred and Abraham Meister appeal from a final judgment in favor of the ap-pellees Emerald Hills Country Club, Inc. and Continental Insurance Company.

This appeal involves a golf cart accident. Appellants and appellee, Paul Fisher, had each rented golf carts from the Emerald Hills Country Club, Inc. As they approached the seventh hole, Mr. Meister turned his golf cart to go to the restroom area for a drink of water. The Fishers elected to follow the Meisters. The Meis-ters stopped their golf cart at the restroom facilities and as Mrs. Meister exited the golf cart, the golf cart operated by Paul Fisher struck the Meister cart from the rear. As a result of the impact, Mrs. Meister suffered personal injuries. Mr. Fisher alleged that the brakes failed on the golf cart that he was operating. Emerald Hills Country Club, Inc., owned both golf carts. The Meisters elected to abandon all other theories of liability against Emerald Hills Country Club, Inc., except such liability as may be imposed under the dangerous instrumentality doctrine of the State of Florida.

This appeal presents one important question: whether or not a golf cart, which is a self propelled vehicle which transports people, is within the dangerous instrumentality doctrine of the State of Florida.

In this state, the Supreme Court created the dangerous instrumentality doctrine. In Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, 978 (1917), the Court laid down the principles underlying the doctrine:

The principles of the common law do not permit the owner of an instrumentality that is not dangerous per se, but is peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle, that is not inherently dangerous per se, but peculiarly dangerous in its use, properly operated when it is by his authority on the public highway. [Emphasis added.]

Numerous decisions have considered the dangerous instrumentality doctrine since Southern Cotton Oil Co., supra. However, until 1974, the courts of Florida appeared reluctant to extend this doctrine to vehicles other than those which were operated on public highways. Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). For example, in 1962 the Third District Court of Appeal had no difficulty in determining that a “tow-motor” constituted a dangerous instrumentality because it was being operated on a public street or highway.

On the evidence, the jury was entitled to find that the injury occurred on a public street or highway maintained by the city for vehicular and pedestrian traffic, and that the “tow-motor” was a motor vehicle. On those facts, the dangerous instrumentality doctrine was properly applied. An owner or driver may not escape liability for negligent operation of a motor vehicle on a public street or highway because the required licensing of the vehicle has been omitted.

Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551, 552 (Fla. 3d DCA 1962). [Footnotes omitted.]

In 1974, this Court concluded that use on a public highway does not constitute a qualification or limitation on the applicability of the dangerous instrumentality doctrine:

[T]he numerous Florida cases in which the dangerous instrumentality doctrine has been applied to motor vehicles virtually without exception have made reference to the fact that such vehicle is a dangerous instrumentality while operated upon the public highways of this state. Indeed it is! But, we do not understand this long established doctrine to mean, conversely, that a motor vehicle in operation is not a dangerous instrumentality while operated elsewhere than upon the public highways of this state. In other words, the reference to the motor vehicle being a dangerous instrumentality while operated upon the public highways is not a qualification or limitation upon the doctrine so as to make it applicable only when the motor vehicle is on the public highway. The qualification is that the automobile, not dangerous per se, becomes such when put into operation.

Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125, 128 (Fla. 4th DCA 1974).

Therefore, neither licensing requirements nor use on the public highways constitute necessary prerequisites for a motor vehicle to come within the dangerous instrumentality doctrine. The Supreme Court, on rehearing in Southern Cotton Oil Co., supra, stated the purpose and policy of the dangerous instrumentality doctrine when it said that

[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 638 (1920). It is apparent from the cases interpreting the Florida dangerous instrumentality doctrine that the doctrine is not limited to automobiles but has been extended to trucks, buses, tow motors and other motorized vehicles.

A golf cart clearly falls within the definition of a “motor vehicle.” The American Heritage Dictionary defines “motor ve-hide” as “Any self-propelled, wheeled conveyance that does not run on rails.” Section 316.003(21), Florida Statutes (1981) defines a motor vehicle as follows:

Motor Vehicle — Any vehicle which is self propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, but not including any bicycle or moped as defined in subsection (2).

Coincidentally it should be noted at this point that properly equipped golf carts are capable of being licensed for use on the public highways.

Our analysis thus far demonstrates that golf carts are motor vehicles and that they may be used on highways and in off road locations. The question remains as to whether vicarious liability should be applied against the owner for the acts of a permissive user.

The two Southern Cotton Oil decisions by the Supreme Court of Florida extend liability to the owners of automobiles based upon the necessity of public policy. The Florida Supreme Court took judicial notice of numerous statistical studies existing in the early 1900’s, and even at that early date concluded that “the automobile has become the most deadly machine in America.” The Court compared industry and its dangers with the automobile and its dangers to innocent people in general. The Court’s decision to extend liability to owners of automobiles when driven on public highways was based upon overriding necessity, that is, the protection of the public from the dangers of automobiles.

The question presented by the instant case is whether golf carts on golf courses operated by paying patrons should entail similar liability. Does the protection of the public require it? Frankly, we are unaware as to just how dangerous golf carts are, and the present record is not enlightening. The type of statistical information relied upon by the Supreme Court in Southern Cotton Oil has not been suggested to us in the instant case. Despite this, we think it fair to judicially notice that golf courses and carts are extremely prevalent in this state. Indeed, they are part of the overall image of a sunshine tourist and retirement playground.

Under all of these circumstances, we conclude that a golf cart on a golf course fulfills all the requirements of the dangerous instrumentality doctrine as established by the Southern Cotton Oil and as expanded by Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125 (Fla. 4th DCA 1974), except for the public policy considerations noted abové. We therefore hold that based on the present record golf carts on golf courses are not within the dangerous instrumentality doctrine. However, we certify this question to the Supreme Court as one of great public importance:

SHOULD GOLF CARTS BE INCLUDED WITHIN THE DANGEROUS INSTRUMENTALITY DOCTRINE ENUNCIATED IN Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), AND AS EXPANDED IN Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125 (Fla. 4th DCA 1974)?

If there are sufficient public policy considerations (dangers to the public) to warrant imposition of vicarious liability here, then the public and the golf courses deserve an answer to this question of statewide application. We do not find that such a public danger exists to the extent that we can take judicial notice thereof.

The judgment below is affirmed and the question certified.

AFFIRMED.

BERANEK, J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially.

I concur in the result reached, but disassociate myself from the flavor of the opinion which appears to be sympathetic to an extension of the doctrine. The basic motivation behind its adoption arose from the appalling slaughter taking place on the public highways. I have heard of no remotely parallel mayhem wrought on golf courses by golf carts.

We would not be confronted with this problem had not this very court strayed from the beaten path, or rather the public road, in Reid v. Associated Engineering; supra, by extending the doctrine to private property. However, I seriously doubt that the author of that opinion ever envisaged it being applicable to golf carts on golf courses. I suppose motorized wheelchairs and lawn mowers will be the next to be urged upon us.


author: BERANEK, Judge.

text:
    Charles JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1029.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals his conviction of robbery asserting error in a special instruction to the jury given over his objection. We reverse on the basis of this instruction.

Jury selection began with the defendant present in the courtroom. At that time he was wearing a goatee. During the evening recess, he shaved his face and appeared in court the following day clean-shaven. At the conclusion of the trial, and over defendant’s objection, the court gave the following instruction:

Proof that a person has changed his appearance may be evidence of that person’s consciousness of guilt. If you find that this has occurred you may give such weight to — you may give the fact such weight as you feel it is entitled to under the facts and circumstances of this case.

Florida courts have long held that the judge is prohibited from commenting upon the evidence to the jury. See Tanner v. State, 197 So.2d 842 (Fla. 1st DCA 1967). Here, the trial court was not technically commenting on the evidence since there was no real “admission” of evidence. He was instead commenting upon an action of a very obvious nature which the defendant took during the trial and it was tantamount to a comment on evidence. The witnesses who identified the defendant testified that at the time of the offense he wore facial hair and had bushier hair. We hold that counsel was certainly at liberty to argue these facts to the jury. In short, the state could have argued that the defendant’s attempts at changing his appearance were an attempt to avoid identification during trial. However, the judge should not have joined in and supported this argument by telling the jury that if they found he had changed his appearance, that such would be evidence of his “consciousness of guilt.” It was conspicuously clear that the defendant altered his appearance during the trial.

The state cites Sireci v. State, 399 So.2d 964 (Fla.1981); Brown v. Stave, 391 So.2d 729 (Fla. 3d DCA 1980); and Straight v. State, 397 So.2d 903 (Fla.1981), in support of the instruction. Each of these cases deals with the admissibility of evidence bearing on the defendant’s consciousness of guilt. In each case, the evidence was held admissible. In Sireci v. State, supra, evidence of a defendant’s attempts at having a witness killed was admitted. However, there is a great distinction between the admission of such relevant evidence and the court’s instruction to the jury on how they should view the evidence.

The state also argues that the instant instruction was similar to an instruction on flight as evidence of guilt. Certainly, there is substantial precedent holding that flight may be considered as a circumstance of guilt and that the court may instruct a jury on it. Such instructions are held “not improper as a judicial comment upon the evidence.” See Batey v. State, 355 So.2d 1271 (Fla. 1st DCA 1978), and the cases cited therein. Frankly, we are not at all certain as to why an instruction on flight does not constitute an improper comment upon the evidence.

We find it noteworthy that in the most recent edition of Florida Standard Jury Instructions (Criminal) there is no instruction provided on “flight.” There is, however, an introductory remark in the Committee’s notes, which states: “Language which might be construed as a comment on the evidence has been avoided.” Fla.Std. Jury Instr. (Crim.) p. xvi, xxi.

We need not, however, be able to explain the rationale of the precedence on flight instructions in order to determine that we will not extend this rationale to instructions on defendants who shave their beards during a trial. We have abundant confidence that a jury will be able to weigh such facts appropriately as augmented by argument of counsel. There is no necessity for the court to add the great influence of a jury charge on the effect of such actions.

The judgment and sentence are therefore reversed, and the matter is remanded for a new trial.

REVERSED AND REMANDED.

LETTS and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    CITY OF HALLANDALE, Appellant, v. Isa Lee AROSE, Appellee.
    No. 82-1961.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.

      Patrick Gent of McCune, Hiassen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellant.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellee.
   HERSEY, Judge.

This appeal arises from a final judgment in a negligence action for personal injury which awarded the plaintiff $50,000 plus costs and interest, after a reduction for comparative negligence. The defendant raises four points on appeal. The extent to which sovereign immunity is waived is controlled by Berek v. Metropolitan Dade County, 422 So.2d 838 (Fla.1982). In Berek the supreme court held “[t]he maximum amount of the state’s liability to any one claimant arising out of any one incident or occurrence, ... is $50,000, including damages, costs, and post-judgment interest.” Id. at 840. We find the other points asserted on appeal are without merit. We therefore reverse the award of interest and costs and affirm the judgment of $50,000.

REVERSED IN PART and AFFIRMED IN PART.

LETTS and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Daryl Lee BOWLIN, Appellee.
    No. 82-2176.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Debra Mann, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

The state appeals an order suppressing from evidence a firearm found in the passenger compartment of an automobile following a lawful custodial arrest for driving while under the influence. We reverse on authority of State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982), which is on all fours with the instant case, and Savoie v. State, 422 So.2d 308 (Fla.1982).

LETTS, GLICKSTEIN and DELL, JJ., concur.


text:
    Lorraine H. JOHNSON, Appellant, v. Hugh W. JOHNSON, Appellee.
    No. 82-2183.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Mary C. Breda and Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellant.
    Robert M. Sturrup of Sturrup & Della-Donna, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Marsh v. Marsh, 419 So.2d 629 (Fla.1982).

ANSTEAD, C.J., HURLEY, J., and WES-SEL, JOHN D., Associate Judge, concur.