author: FERGUSON, Judge. NESBITT, Judge

text:
    Raymond LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-998.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant was convicted and sentenced for first-degree murder. He raises two issues by this appeal: (1) the prosecutor violated his constitutional rights by eliciting testimony from a police officer which indicated that defendant had exercised his right against self-incrimination while under police interrogation; (2) the evidence adduced at trial failed to establish that the homicide was premeditated or committed during the perpetration of a felony.

Facts pertinent to the first issue are as follows. The victim, an elderly woman, was found dead in a bedroom of the house where she lived alone. The cause of death was determined to be strangulation or broken ribs or both. Appellant, a long-time neighbor and family friend of the victim, was arrested after his fingerprints were found inside a bathroom in the house, and on a lamp in the bedroom where the victim was found by the police and a neighbor. A third fingerprint of the defendant was found on an empty soda can.

At police headquarters, appellant gave a full confession which was consistent with the physical evidence found at the crime scene. Bloodstains found on the trousers worn by defendant on the date of the crime matched the victim’s blood. The lead investigator in the case, Detective Young, made notes of the confession on a note pad. After taking the oral confession, the detective attempted to have defendant sign a formal statement. He said that he would not without an attorney, and never did.

At trial, appellant attempted to discredit the officer’s testimony by showing that the lack of a formal statement evidenced poor investigative work and inaccurate note taking. Cross-examination of the officer by defense counsel was, in part:

Q. Furthermore, [appellant] himself never looked over those notes; did he, Detective Young?
A. No, he didn’t.
Q. He never initialed them either; did he?
A. No.
Q. Did you ask him to look over those notes; Detective Young?
A. No, I didn’t.
Q. Did you ask him to initial those notes?
A. No.
* * * * ⅜ *
Q. It’s my understanding that this was the ninth case that you investigated as a lead detective.
A. That’s correct.
Q. Okay. In the other eight cases, had you ever taken a confession of anybody?
A. Yes.
Q. How many times?
A. In all of the other cases. All of the other eight cases.
⅝ * ⅝ ⅜ ⅛! ⅝
A. This was the first time I only had just an oral confession.
Q. Every other time you had a stenographic confession; is that correct?
A. Yes.
* * ⅜: s{s * ⅜
A. In the other cases, there were formal confessions where a stenographer had copied down the statement. This was not a formal confession.
Q. Well, a formal confession is better than an oral confession for your purposes; isn’t it?
A. Yes.
Q. How is something that wasn’t as good as a formal confession — don’t you think it would have been good for Mr. Love to have looked over those notes and confirmed the fact he made those statements?
A. I didn’t think so at the time, no, sir.

On redirect examination the prosecutor, in showing that the officer was not an inept investigator and that the defendant declined an opportunity to verify the officer’s version of his statements, inquired, over appellant’s objection:

Q. Did you make an attempt to get a formal statement from [appellant]?
A. Yes, I did.
Q. Answer the question.
A. Yes.
Q. Why do you not have a formal statement of [appellant]?

[There was an objection and a side-bar conference in which defendant’s objection was overruled and a motion for mistrial denied],

Q. Again, just yes or no. Did you try to get a formal statement?
A. Yes.

Appellant argues from the established principle that any reference to the silence of an accused in the face of custodial interrogation is improper. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner. “The prosecutor may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” [e.s.] Simpson v. State, 418 So.2d 984, 985 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983), citing Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967) which quotes from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Essential to those cases, however, is some action consistent with the exercise of the right to remain silent before a confession is given. We think the privilege against self-incrimination is waived after a full confession whether it is oral or written. See Hayes v. State, 400 So.2d 519 (Fla. 3d DCA 1981) (after defendant was advised of his right to remain silent, his free and voluntary denial of knowledge of the matter being inquired into was not an invocation of the Fifth Amendment privilege). Cf. Turner v. State, 414 So.2d 1161 (Fla. 3d DCA 1982) (where defendant, having been warned of his right to remain silent, made certain statements short of a confession but then stated “that is all I am gonna [sic] tell you right now”, reference to that ultimate statement by the prosecutor was an improper comment on defendant’s exercise of the privilege to remain silent). We hold, accordingly, that refusal to reduce to writing an otherwise complete oral confession is not an exercise of the right to remain silent.

Following are the facts pertinent to the second point on appeal. The victim was last seen alive by a next door neighbor on August 19, 1980. Neighbors became concerned for her welfare on August 21st because they knew she had been ill. On that same day, law enforcement officers entered the home with a neighbor and found the victim dead. The testimony of the medical examiner was that the victim had been dead for a period of between eighteen and thirty-six hours prior to the time he first observed her body in the bedroom on August 21, 1980. Appellant’s motorcycle was seen at the victim’s house on August 20, 1980.

Detective Young testified that appellant confessed to her that he got to the victim’s house on August 20, about 10:00 a.m. and talked with her while they drank beer and Coca-Cola; that about noon as he was leaving he asked for some money and she said no; that he said okay, hugged her and then “something snapped”; that he grabbed her by the throat, dragged her into the bedroom and started beating her with his fists, feet and some object that was. on the night stand.

The evidence also shows that on August 20, 1980, appellant cashed a $750 check belonging to the victim, which was made out to him. It was stipulated that the check was forged by appellant.

The indictment charges first-degree murder by premeditation, or while in the course of, or an attempt to commit, a robbery or burglary. Appellant argues that there is no direct evidence that the homicide was “an integral part of the same transaction as the taking of the check”, and that the circumstantial evidence tending to establish that fact does not exclude the hypothesis that he obtained it the day before the homicide, or before or after the assault. It is also eon-tended that defendant’s statement that “something snapped” before he proceeded to attack the victim, a close family friend, is not consistent with premeditation, which requires the existence of a “thought or design” at some ascertainable point in time prior to the homicide.

In accordance with the instruction on circumstantial evidence the jury could have excluded as a reasonable hypothesis that the victim’s check came into appellant’s possession at some time other than immediately after the victim had been battered. The facts which have been established by direct proof are (1) appellant visited the victim in the late morning of August 20, 1980, asked her for money and was refused, (2) immediately thereafter he beat and strangled her into unconsciousness, (3) on the afternoon of the same day appellant cashed one of the victim’s checks in the amount of $750 made out to himself, which, admittedly had been forged by him. The single link which the jury was required to make circumstantially in order to support a first-degree murder-robbery conviction is that the purpose of the attack was to prevent the victim from resisting the taking of the check (which was in fact later forged and cashed) or any other property belonging to her. Along with the direct proof, the circumstantial evidence connected the chain and established an underlying robbery to the exclusion of any other reasonable hypothesis.

Affirmed.

NESBITT, Judge

(specially concurring):

I concur in the majority opinion with regard to the first issue only. As concerns the second issue, I agree that the jury verdict of first degree murder can be and should be sustained, but disagree that felony murder is the proper theory for doing so.

In a felony murder prosecution, both the homicide and the underlying felony must be proved beyond a reasonable doubt. Robles v. State, 188 So.2d 789 (Fla.1966). Furthermore, the homicide and felony must be an integral part of the same transaction. See Campbell v. State, 227 So.2d 873, 878 (Fla.1969), cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); Jefferson v. State, 128 So.2d 132, 136-37 (Fla.1961).

The only evidence linking the misappropriation of the check with the murder was that the appellant cashed the check on the same day as the murder. Thus, the evidence of a felony murder was purely circumstantial.

Where evidence of a crime is purely circumstantial, the evidence must be inconsistent with any reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956); D.M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981). The question of whether the evidence excludes all reasonable hypotheses of innocence is one for the .jury to determine, but such determination must be based upon competent, substantial evidence. Rose v. State, 425 So.2d 521, 523 (Fla.1982). I would hold that in this case where the appellant was not only a long-time neighbor and family friend of the victim, but also a frequent visitor to her house, the evidence that the check was cashed on the day of the murder was not substantial evidence for purposes of excluding the hypothesis that the check was taken on some other occasion.

Admittedly, the evidence as to premeditation in this case is circumstantial also. Where premeditation is sought to be proved by circumstantial evidence, the jury must again exclude all reasonable hypotheses of innocence of premeditation. Hall v. State, 403 So.2d 1319 (Fla.1981); Tien Wang v. State, 426 So.2d 1004 (Fla. 3d DCA 1983). Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).

Examining these factors in light of the evidence in this ease, it is clear that there was absolutely no evidence of difficulties between the parties previous to the day of the murder. However, premeditation may occur a moment before the act. Sired v. State, supra. The remainder of the evidence as to premeditation showed that the appellant asked the victim for money, but was refused. He then dragged her from somewhere near the door of the house into the bedroom where he placed her between two beds, beat her with his fists and feet, and eventually removed a blunt object from a nearby nightstand in order to finish the job. I would hold that this was competent, substantial evidence from which the jury could infer premeditation and exclude as unreasonable all hypotheses of innocence thereof.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julian COSTAS and Juana Costas, his wife, Appellants, v. Alejandro MIRANDA and Sara M. Miranda, his wife, Appellees.
    No. 82-2096.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Miguel A. Orta, North Miami, and Carol B. Haber, Miami, for appellants.
    L. Michael Osman, Hialeah Gardens, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Defendants appeal a summary final judgment entered in favor of plaintiffs on the breach of contract count of a complaint seeking damages for the defendants’ failure to close a real estate transaction as provided for in the deposit agreement between the parties.

Our review of the record convinces us that there are genuine issues of material fact which have not been eliminated by movants for summary judgment.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: NESBITT, Judge.

text:
    Patrick W. HUGHES, Appellant, v. Kathleen K. HUGHES, Appellee.
    No. 82-2315.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.

      Gary S. Gostel, Miami, for appellant.
    Edmond W. Frank, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   NESBITT, Judge.

By this appeal, the husband challenges several portions of the order dissolving the parties’ marriage.

The facts relevant to our discussion are as follows. The parties were married for twelve years but lived apart for the last five. At the time of the final hearing, the husband was earning $50,000 a year as an employee for Florida Power and Light Company, while the wife was earning $27,-500 a year as a registered nurse. During the marriage, the husband had completed his bachelor of science degree at the University of Miami and obtained a second bachelor of science degree from Florida International University. Florida Power and Light Company had reimbursed most of his tuition payments. The marital home, which was purchased with joint funds, has an equity of $80,000. Since the time of the separation, the husband has remained in the residence making all of the mortgage payments while the wife has moved into an apartment.

The husband’s first argument is that he was entitled to credit for mortgage payments made from the time of separation until the date of the final hearing. We agree and reverse on this issue. Parker v. Parker, 405 So.2d 1021 (Fla. 3d DCA 1981), dismissed 412 So.2d 468 (Fla.1982); Dancu v. Alexander, 421 So.2d 819 (Fla. 4th DCA 1982); Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975).

The husband’s second contention is that the trial court improperly granted the wife lump sum alimony based on the future value of the husband’s college degrees earned during the marriage. The only appellate court in Florida to have considered this question found that the “wife’s claim to a vested interest in the husband’s education and professional productivity past and future is unsupported by any statutory or case law.” Severs v. Severs, 426 So.2d 992, 994 (Fla. 5th DCA 1983). While we agree with the fifth district’s result, in light of the arguments presented by the parties, a discussion of the relevant law is warranted. We commence our analysis with an overview of the approaches utilized in other jurisdictions to resolve the issue.

In a leading case, In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978), the Colorado Supreme Court considered wheth-. er the ascription of property status to an education degree would be appropriate. Reasoning that it would not, the court stated:

An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of “property.” It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term.

574 P.2d at 77. See also Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115, 122 (Ct.App. 1981) (the marital property concept “simply does not fit”). In re Marriage of Goldstein, 97 Ill.App.3d 1023, 53 Ill.Dec. 397, 423 N.E.2d 1201 (1981); Muckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357 (1972) (for purposes of community property law, a medical license is not community property since it cannot be the subject of joint ownership) Hubbard v. Hubbard, 603 P.2d 747 (Okl.1979).

This theoretical argument is not nearly as strong as the pragmatic concern represented in decisions such as Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982). In that case, the court observed that the value of a professional degree is nothing more than the possibility of enhanced earnings that the academic credential will provide. Consistent with this view, the marital property which is being divided is in actuality the future earnings obtained by the degree. Such an analysis raises the problem of engaging in speculation as to the value of an intangible asset. This procedure would involve a “gamut of calculations that reduces to little more than guesswork.” Mahoney, 453 A.2d at 532. The same view was adopted in DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761, 768 (CtApp.1980):

Whether a professional education is and will be of future value to its recipient is a matter resting on factors which are at best difficult to anticipate or measure. A person qualified by education for a given profession may choose not to practice it, may fail at it, or may practice in a spe-ciality, location or manner which generates less than the average income enjoyed by fellow professionals. The potential worth of the education may never be realized for these or many other reasons. An award based upon the prediction of the degree holder’s success at the chosen field may bear no relationship to the reality he or she faces after the divorce.

See also Todd v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131 (1969); Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1977) (a vested present interest must exist for the item to come within the ambit of- marital assets); Moss v. Moss, 639 S.W.2d 370 (Ky.Ct.App.1982); cf. Dugan v. Dugan, 92 N.J. 423, 457 A.2d 1 (1983) (good will in contrast to a degree reflects not just a possibility of future earnings but a probability based on existing circumstances). Even if such an estimation could be made, the court would then be required to calculate the differential between what the degree holder would have obtained without the education and what has been accomplished by the enhanced career. Mahoney, supra. This figure must be further tempered by such considerations as the fact that as a profession develops, income becomes attributable to experience rather than to the degree.

The concern with valuing this intangible is substantially increased with the realization that property distributions become final and are not subject to alteration upon a change of circumstances. If the degree holder fails to live up to the court’s expectations, the finality of property distribution precludes a remedy. Mahoney, supra; DeWitt, supra. Because of these problems with valuing a degree, the majority of courts have decided not to subject professional degrees to distribution as a property right.

Several courts which have declined to treat the degree as property have awarded the supporting spouse reimbursement for financial contributions made to obtain the degree, see, e.g., Moss, supra; Moss v. Moss, 80 Mich.App. 693, 264 N.W.2d 97 (1978); DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn.1981); Mahoney, supra; Hubbard, supra; Lundberg v. Lundberg, 107 Wis.2d 1, 318 N.W.2d 918 (1982) (broadening the amount of compensation allowed from that permissible under the statute in effect at time DeWitt, supra, was decided); or have found that the spouse’s education will be taken into account in arriving at the property division of other marital assets and in determining alimony and child support, see, e.g., Wisner, supra; In re Marriage of Graham, supra; Scott v. Scott, 645 S.W.2d 193 (Mo.App.1982); DeWitt, supra.

On the other side, at least three courts have adopted a recognitional approach. In only one, O’Brien v. O’Brien, 114 Misc.2d 233, 452 N.Y.S.2d 801 (1982), did a court award a spouse the value of the degree holder’s education as measured by future earnings. The other two decisions, while identifying a property interest, limited its value to its cost. In Inman v. Inman, 578 S.W.2d 266 (Ky.Ct.App.1979), the court stated:

In most cases, we feel that the best measure of a spouse’s interest in such a degree should be measured by his or her monetary investment in the degree, but not equivalent to recovery in quasi-contract to prevent unjust enrichment.
Thus the amount spent for direct support and school expenses during the period of education, plus reasonable interest and adjustments for inflation, should be apportioned to the spouse who provided support when, as in the case of the In-mans’, there is little or no marital property acquired through the increased earning capacity provided by the supported spouse’s degree or training.

578 S.W.2d at 269-70; but see, Leveck v. Leveck, 614 S.W.2d 710 (Ky.Ct.App.1981) (limiting Inman’s holding that license and degree are marital property). The Supreme Court of Iowa drew a distinction between the educational degree itself and the potential for increase in future earning capacity and held that the latter constituted an asset subject to distribution. In re Marriage of Horstmann, 268 N.W.2d 885 (Iowa 1978). However, like Inman, the court accepted, as a method of valuing the degree, the costs incurred in its procurement.

In sum, while a variety of approaches have been utilized to find that a degree is property or to deny such a characterization, the majority view appears to be that an educational degree is not an asset subject to distribution because its value, as measured by future earning capacity, is too speculative to calculate. Against this background, we must decide the course which we will follow.

In the present case, the following discussion was had relevant to this issue:

THE COURT: I assume I have a lot of discretion on it. It is tough to try to figure out what a wife’s contribution from that sensitive period would be.
What does that mean in terms of his future earnings, even down the line, the increases that he would have made, for example.
I assume he would be making around $20,000 a year working for FP & L. Now he is making 50. So, every year he has increased she has contributed to his increasing $30,000 — not that whole $30,000, but I do think that even the most minimal figure, like a half of a percent of that — saying that is all she contributed, you are still talking another $10,000 for that figure.
A half a percent a year for his increase and he has got another twenty years to live or work, at least; 30 years, probably — twenty years to work.
Even figuring a half of a percent.of that increase — I am going to say that the wife will be entitled, then, to a lump sum alimony of $50,000.

It is apparent from the trial judge’s recitation that he viewed the value of the degree to be the future earning capacity to the degree holder and accordingly granted lump sum alimony on that basis. We agree with the trial judge and the other jurisdictions which have found that if the value of an educational degree is to be measured, it must be calculated by the possibility of future earnings and not solely by its cost.

As the Appellate Division explained, the cost of a professional degree “has little to do with any real value of the degree and fails to consider at all the nonfinancial efforts made by the degree holder in completing his course of study.” 182 N.J.Super. at 610, 442 A.2d 1062. See also DeWitt, supra, 296 N.W.2d at 767. Once a degree candidate has earned his or her degree, the amount that a spouse — or anyone else — paid towards its attainment has no bearing whatever on its value. The cost of a spouse’s financial contributions has no logical connection to the value of that degree.

Mahoney, 453 A.2d at 533. See also De-Witt, supra. However, the fact that the degree must be measured by such an imprecise and uncertain yardstick raises the same concerns in this court as it has in many other jurisdictions. The trial judge’s best guess as to the potential of the degree holder is just that — a guess. And yet, because of this determination, the spouse may be locked into a career which he or she may not choose to follow. Basing an inflexible award on the changing circumstances of everyday life creates a burden which we are not willing to place on a spouse merely because he decided to obtain a degree.

Additionally, to calculate lump sum alimony upon a possibility whichmight occur in the future is inconsistent with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) which defined the parameters for a lump sum award as follows:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.

382 So.2d at 1201.

First, it is clear that future earnings cannot be property acquired during the marriage. This problem has been recognized in community property states, In re the Marriage of Aufmuth, 89 Cal.App.3d 446, 152 Cal.Rptr. 668 (1979), (overruled in part on other grounds by In re Marriage of Lucas, 27 Cal.3d 808, 614 P.2d 285, 166 Cal.Rptr. 853 (1980)); Frausto v. Frausto, 611 S.W.2d 656 (Tex.Civ.App.1980), as well as other jurisdictions whose statutes or ease law provide that the marital property includes only assets in existence at the time of dissolution. See DeWitt, supra; In re Marriage of McManama, 399 N.E.2d 371 (1980).

Second, the requirement that the spouse have the financial ability to make the lump sum payment will not be satisfied where the award is based on earnings to be accumulated in the future. In effect, the spouse is being forced to make a payment from something which has never existed. See generally Ramsey v. Ramsey, 431 So.2d 258 (Fla. 2d DCA 1983).

After careful consideration of the foregoing arguments, we conclude in accordance with the majority view, that an educational degree is not property subject to distribution as lump sum alimony because its value, which must be measured by future earning capacity, is too speculative to calculate. Accordingly, we reverse that portion of the trial court order which awarded the wife $50,000 in lump sum alimony based on the husband’s prospective earnings.

Because dissolution orders necessarily encompass interrelated problems in apportioning assets to create an overall balance, we need not, at this stage, consider the other matters raised by the husband. On remand, the trial court may again exercise its discretion to modify related matters so as to do equity and justice. Hartzell v. Hartzell, 434 So.2d 353 (Fla. 4th DCA 1983). In doing so, the trial court should consider the husband’s education in arriving at the distribution of other assets and in determining the propriety and/or amount of alimony. See Section 61.08(2)(f).

Reversed and remanded.

      . Section 61.08

      (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

      (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.


text:
    INDUSTRIAL WASTE SERVICE, INC., Appellant, v. MCDONALD’S OF HOMESTEAD, INC., Appellee.
    No. 83-146.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, and Richard Sherman, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Kathleen M. O’Connor and Michael R. Jenks, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We hold that appellant, Industrial Waste, failed to state a cause of action for indemnification in that it did not allege that it was without fault or that it had the requisite special relationship with McDonald’s which would render Industrial vicariously liable for McDonald’s negligence. Houd-aille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

Affirmed.


text:
    Charles BULLOCK, Appellant, v. METROPOLITAN DADE COUNTY and Officer Michael Kernbach, Appellees.
    No. 83-147.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Richard A. Barnett, Hollywood, for appellant.
    Robert A. Ginsburg, County Atty., and Ralph C. Rocheteau, III, Asst. County Atty., for appellees.

      Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Dismissal of plaintiff’s action for failure of his attorney to appear for a call of the calendar is too severe a sanction to visit upon a litigant. For derelictions of this nature, a court is empowered to discipline the offending attorney by contempt or other appropriate punishment. See Catogas v. Sapp, 397 So.2d 1182 (Fla. 3d DCA 1981); Aller v. Editorial Planeta, S.A., 389 So.2d 321 (Fla. 3d DCA 1980).

Reversed.


author: DANIEL S. PEARSON, Judge.

text:
    Ronnie WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-287.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Williams’ sole contention on appeal is that the trial court erred in denying his motion for mistrial occasioned by the testimony of a police officer, during direct examination by the State, that a photograph of the defendant which the victim of the robbery had identified in a photo lineup was not available at trial because it had been “used in another investigation” and had been misplaced. We reject Williams’ contention and affirm his convictions upon a holding that (1) any prejudice to the defendant arising from the possible suggestion in the testimony that the defendant was a suspect in another crime was completely dissipated by the officer’s immediate explanation to the jury that Williams was not a suspect in the other investigation and that his photograph was used simply as “a filler” for a photographic line-up, see Hernandez v. State, 323 So.2d 318 (Fla.3d DCA 1975) (court correctly denied defendant’s motion for mistrial based on statement by witness that the defendant “was arrested by the federal ...” where witness clarified that the arrest mentioned was for the charges for which defendant was on trial); see also Wallace v. State, 221 So.2d 759 (Fla.3d DCA 1969) (error in admitting arguably objectionable testimony cured by the court’s subsequent explanation to the jury); (2) assuming, arguendo, that a jury might infer from the fact that a photograph of the defendant was shown to the victim that the photograph came from police files, “that does not necessarily convey to a jury that [the] defendant has committed prior crimes or has previously been in trouble with the police,” and a jury instruction to that effect, had one been requested, which here it was not, would cure any error, Evans v. State, 422 So.2d 60, 61 (Fla.3d DCA 1982); Moore v. State, 418 So.2d 435, 436 (Fla.3d DCA 1982); and (3) in light of the overwhelming evidence of the defendant’s guilt, any undissipated prejudice arising from the police officer’s testimony must be deemed harmless error.

Affirmed.

      . In our view, this explanation was far more curative of the potential prejudice than the trial court’s instruction to the jury to disregard the police officer’s statement that the photograph had been “used in another investigation” which itself was sufficient to cure any error. See, e.g., Warren v. State, 270 So.2d 8 (Fla.1972) (testimony of witness that defendant was in a “boy’s school” was not prejudicial error, where court instructed jury to disregard the testimony); Riley v. State, 367 So.2d 1091 (Fla.3d DCA 1979) (reference in testimony by police officer to the several charges for which the defendant was arrested rendered harmless by curative instruction to jury); Flowers v. State, 351 So.2d 764 (Fla.3d DCA 1977) (trial court did not err in denying defendant’s motion for mistrial when officer’s statement that he “recognized [the defendant] from probably previous things” was subject of curative instruction to jury); Sykes v. State, 329 So.2d 356 (Fla. 1st DCA 1976) (court properly denied mistrial after instructing jury to disregard statement by officer that he had seen the defendant in jail on several occasions); Williams v. State, 327 So.2d 798 (Fla.3d DCA 1976) (jury instruction to disregard statement of police officer that he first came in contact with defendant when he arrested him on a bench warrant rendered error harmless); Rhome v. State, 222 So.2d 431 (Fla.3d DCA 1969) (instruction to jury to disregard statement by police officer that there were “some other circumstances involving the defendant” sufficient to overcome possibility of prejudice); Monroe v. State, 218 So.2d 209 (Fla.2d DCA 1969) (testimony of police officer that the defendant “was involved in the same type of incident prior to that” harmless error in view of the court’s instruction to the jury to disregard the testimony); Kelly v. State, 202 So.2d 901 (Fla.2d DCA 1967) (trial court did not abuse discretion in denying motion for mistrial after instructing jury to disregard statement by police officer that he was assigned to the surveillance of “two known felons”).

      . The defendant robbed a taxi driver who had picked him up at a hotel. He forced the driver out of the cab and drove the cab away. The cab was located two blocks away by the police, and found therein was the defendant’s wallet which contained his driver’s license and other papers upon which the defendant’s handwriting appeared. Moreover, the victim had ample opportunity to observe the defendant and unhesitatingly identified him.


text:
    Wayne E. PURCELL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-395.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The order revoking the appellant’s probation is affirmed. Nevertheless, we remand to the trial court for a determination of the amount of time to be credited against the defendant’s sentence. See Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982).


text:
    J.H. MERTENS and Mimi Mertens, his wife, Appellants, v. OUTDOOR RESORTS AT LONG KEY, INC., a Florida non-profit corporation, Appellee.
    No. 83-461.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Kenneth H. Smith, Tavernier, for appellants.
    Becker, Poliakoff & Streitfeld and Edward S. Polk, Fort Lauderdale, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637 (Fla. 4th DCA 1981).


text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Normand THERIAULT, et al. Appellees.
    No. 83-1536.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.

      Steven R. Berger, Miami, for appellant.
    Lewis N. Jack, Jr., Miami, for appellees.
    Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

This action was commenced by appellee Theriault against Dade County, which in turn cross-claimed against its insurer/appellant. Appellant seeks review of a declaratory judgment in favor of appellee Dade County on the question of coverage.

The non-final order entered herein does not decide the issue of liability in favor of the party seeking affirmative relief as contemplated by Rule 9.130(a)(3)(iv), thus the order is not appealable. Travelers Insurance Co. v. Bruns, 429 So.2d 317 (Fla. 4th DCA 1983); Ogur v. Mogel, 390 So.2d 105 (Fla. 3d DCA 1980).

Appeal dismissed.

      . Our decision expressly conflicts with decisions from two other districts. See P & H Vehicle Rental and Leasing Corp. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982); Alamo Rent-a-Car, Inc. v. Summers, 404 So.2d 131 (Fla. 2d DCA 1981).


author: SCHOONOVER, Judge.

text:
    Elissa Landi PAPARONE, Appellant/Intervenor, v. LAKE PLACID HOLDING COMPANY, Appellee/Plaintiff, and Bankers Life and Casualty Company, Placid Lakes Corporation, and Magna Properties, Inc., Appellees/Defendants.
    No. 82-2214.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.

      Gerald F. Richman and William C. Hear-on of Floyd, Pearson, Stewart, Richman, Greer & Weil, P.A., Miami, for appellant/intervenor.
    Edward W. Vogel, III, Julian Clarkson and C. Lawrence Stagg of Holland & Knight, Tampa, for appellee/plaintiff, Lake Placid Holding Co.
    John W. Frost, II of Frost, Purcell & Lilly, P.A., Bartow, for appellees/defend-ants, Bankers Life & Cas. Co., Placid Lakes Corp., and Magna Properties, Inc.
   SCHOONOVER, Judge.

This is an appeal from a final summary judgment entered against the interve-nor/appellant, Elissa Landi Paparone (Pa-parone), in favor of the plaintiff/appellee, Lake Placid Holding Company (LPHC), and defendants/appellees, Bankers Life & Casualty Company, Placid Lakes Corporation, and Magna Properties, Inc. (collectively referred to as Bankers).

LPHC entered into an agreement to sell certain land to Gulfstream Citrus, Inc. This agreement was subsequently assigned to Placid Lakes Corporation, who intended to develop the property along with Magna Properties, Inc. Both corporations are related to Bankers. Bankers, in addition to making a large cash payment at closing, assumed several outstanding mortgages on the property and agreed to develop and sell the property. They entered into a profits participation agreement whereby they agreed to pay LPHC twenty-five percent of the pretax profits arising from said development and sale.

Paparone, former spouse of August To-bler who controlled LPHC, was the real estate broker in connection with the sale of the land. LPHC agreed to pay her a real estate commission in the amount of $20,000, plus a sum equal to fifty percent of any monies received by LPHC under the terms of the profits participation agreement.

When it became evident that Bankers was not going to fulfill its obligation of developing and selling the property, LPHC filed an action seeking damages, specific performance, and foreclosure of a vendor’s lien. After lengthy negotiations, the parties agreed that the suit would be settled by LPHC reacquiring the property free and clear, by a deed in lieu of foreclosure. Pa-parone then intervened in the litigation and claimed entitlement to a portion of the damages from Bankers.

The deed in lieu of foreclosure was executed and recorded in accordance with the agreement, and LPHC dismissed its cause of action against Bankers. LPHC then filed a cross-claim against Paparone for declaratory relief. Paparone filed an answer, affirmative defenses, and a cross-claim. In one count of her complaint, she alleged that LPHC and Bankers, with full knowledge of her rights and motion to intervene, wilfully and maliciously conspired to defraud and defeat her rights by settling the litigation amongst themselves and in transferring the subject property in such a manner that would cloud the true nature of the settlement.

The parties filed motions for summary judgment. The court granted appellees’ motions finding that there was no genuine issue of material fact because Paparone’s claim for a brokerage commission was limited to a particular fund, i.e., profits to be received by LPHC under the profits participation agreement, and said fund never materialized. The court further held that since Paparone had no rights to an additional commission, there was no basis for her allegations that she was defrauded by the parties. Accordingly, Paparone’s motion for summary judgment was denied, and her complaint in intervention and her cross-claim were dismissed with prejudice.

We find that the trial court properly denied Paparone’s motion for summary judgment because the court could not consider her allegations of fraud unless it was first shown that there was a fund from which her commission was to be paid, or that the fund was not created because of actions attributable to the appellees. Accordingly, we affirm that portion of the trial court’s order. However, we find that the court erred in granting appellees’ motions for summary judgment and in dismissing Paparone’s complaint in intervention and her cross-claim with prejudice.

A summary judgment may be rendered only if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c).

This court has previously determined that the agreement between Papar-one and LPHC was a contract for a real estate broker’s fee. Lake Placid Holding Co. v. Paparone, 414 So.2d 564 (Fla.2d DCA 1982). The payment of a broker’s commission may be restricted to a particular fund so that the creation of that fund becomes a condition precedent to liability for the payment of such a commission. In such a case, a broker is not entitled to payment until the fund is realized, unless the failure to realize such fund is due to the neglect, unreasonable refusal to act, or is otherwise attributable to the broker’s employer. Additionally, if one prevents or renders impossible the performance or occurrence of a condition precedent, upon which his liability is contingent, he cannot avail himself of its nonperformance. Balias v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421 (1930).

The trial court ruled as a matter of law that the fund from which Paparone was to receive her commission never came into existence. However, in his deposition, Mr. Tobler of LPHC testified that instead of receiving money from the profits participation agreement, he had received land in settlement thereof. He also testified that he was taking the property in lieu of profits that he would have been entitled to under the profits participation agreement. Therefore, a material issue of fact exists as to whether or not the fund was created by the substitution of the land for the money. If that issue of fact is resolved against Papar-one, and the trier of fact determines that the fund was never created, it will still be necessary to determine whether the creation of the fund was prevented by the unreasonable refusal to act, or some other wrongful action attributable to the appel-lees.

The appellees’ reliance on the case of Langford v. King Lumber & Mfg. Co., 123 Fla. 855, 167 So. 817 (1935), is misplaced. In that case, the court held that, if lands previously sold were reeonveyed due to the inability to make payments, a broker is not entitled to payment of a conditional commission. In Langford, there was no dispute that the deed in lieu of foreclosure was given because of the inability to make payments. However, in the case sub judice, there is a question of fact as to whether or not the deed was given because of the inability to make payments, or for some other reason, e.g., to avoid a decree in specific performance, or merely to relieve Bankers from its obligations under the contract. We accordingly reverse and remand for proceedings consistent herewith.

REVERSED and REMANDED.

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


author: RYDER, Judge.

text:
    Samuel CODOMO, Appellant, v. John CARROLL and Lucille Carroll, individually, Appellees.
    No. 83-96.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Robert H. Dillinger of Akerson, Swisher, Dillinger & Brett, St. Petersburg, for appellant.
    Peter N. Meros of Meros & Smith, P.A., St. Petersburg, for appellees.
   RYDER, Judge.

Samuel Codomo appeals from the entry of a summary judgment in favor of John Carroll and Lucille Carroll, the plaintiffs below. We affirm.

The Carrolls had filed a complaint seeking to establish as a Florida judgment a judgment which was obtained in California by Lucille Carroll against appellant Codo-mo. Codorno denied the allegations of the complaint and asserted as an affirmative defense that the California judgment was based upon a fraudulent conspiracy involving the appellees and others. In a two-count counterclaim, Codorno alleged that: there was a conspiracy to injure his business and defraud him of property; the California judgment was obtained by fraud; the California court did not litigate the question of fraud; and the conspiracy “prevents any absolute obligation by the Florida courts to recognize said judgment.”

Subsequently, both parties filed motions for summary judgment. The trial court entered summary judgment in favor of both John Carroll and Lucille Carroll and denied appellant’s motion for summary judgment.

Appellant Codorno has claimed that there was a conspiracy to injure his business and defraud him of real estate located in Manatee County, Florida. Codo-rno then asserted as his conclusion that the California judgment was fraudulently obtained. Yet nowhere does appellant make any connection between the allegations of conspiracy and fraud and the assertion that the California judgment was obtained by fraud. Nor does the record support the conclusion reached by appellant. A mere assertion of fraud in obtaining a foreign judgment, without any substantiation whatsoever, will not operate to prevent establishment of the foreign judgment as a Florida judgment. See Fla.R.Civ.P. 1.110(b) and 1.120(b). While someone may have conspired against or defrauded appellant, appellant has failed to allege facts which would allow the conclusion that such a conspiracy or fraud was involved in the California case. The summary judgment against Codorno, establishing the California judgment as a Florida judgment, is supported by the record. See Newton v. Newton, 245 So.2d 45 (Fla.1971); Berger v. Hollander, 391 So.2d 716 (Fla. 2d DCA 1980).

The named plaintiffs in the California case, as in the case sub judice, were John Carroll and Lucille Carroll. However, the judgment in the California case was entered only in favor of Lucille Carroll. The trial court below granted the motion for summary judgment in favor of John Carroll and Lucille Carroll. The establishment of the California judgment as a Florida judgment must be in accordance with the actual California judgment; hence, we strike the name of John Carroll from the order below so that the order grants summary judgment only to Lucille Carroll.

It is also noted that the trial court ordered “defendant’s motion for summary judgment is not in the court file and apparently filed only within the last few days and is not' timely filed, is denied without prejudice.” [sic] We construe this portion of the order to mean that appellant’s counterclaim may be viable in a different proceeding and may be pursued accordingly.

As appellant has failed to demonstrate any reversible error, we AFFIRM the entry of summary judgment in favor of Lucille Carroll.

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


text:
    Joseph DEPASQUALE, Appellant, v. STATE of Florida, Appellee.
    No. 83-130.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Joseph Depasquale seeks review of his judgment and sentence for the first degree felony of armed robbery. Depasquale contends he was improperly convicted of first degree armed robbery, alleging the state failed to establish that he used a weapon during the commission of the crime. We affirm.

The statute under which appellant was charged, section 812.13(2)(b), Florida Statutes (1981), provides that the use of a weapon during the commission of a robbery constitutes armed robbery in the first degree punishable by imprisonment not to exceed thirty years. At trial, the state introduced evidence that appellant used a BB gun in the course of robbing a Lum’s Restaurant. Appellant argues that the fact that he possessed a BB gun during the robbery failed to satisfy the state’s burden of proving that he used a “weapon.”

A weapon is defined under section 790.-001(13), Florida Statutes (1981), as any “dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or any other deadly weapon except a firearm or a common pocket knife.” See also section 790.001(6), Florida Statutes (1981). Appellant maintains that because section 790.001(13) fails to include a BB gun among the enumerated items listed as weapons, a BB gun is not a weapon within the context of section 812.13(2)(b), Florida Statutes (1981).

We reject Depasquale’s interpretation of section 790.001(13). As noted above, the text of section 790.001(13) concludes in part with the language “... or any other deadly weapon.. .. ” Generally, the term deadly weapon is interpreted as “any instrument that, when used in the ordinary manner contemplated by its design and construction, will or is likely to cause death or great bodily harm.” 56 Am.Jur. Weapons and Firearms § 2 at 991 (emphasis added); Smith v. Nussman, 156 So.2d 680 (Fla. 3d DCA 1963); see also Standard Jury Instruction on Robbery; McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978).

A BB gun is an air or gas operated gun designed to expel lead or other metallic shot. Accordingly, a BB gun possesses the capability of inflicting great bodily harm; a capability that is heightened if a BB gun is used in the manner as the one used by appellant. We find, therefore, that a BB gun constitutes a weapon as contemplated by section 790.001(13), Florida Statutes (1981), and that appellant’s use of the BB gun during the commission of the robbery constituted armed robbery in the first degree. Therefore, both the judgment and sentence entered herein are AFFIRMED.

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


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Samuel Henry MUOIO, Respondent.
    No. 83-1231.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for petitioner.
    John Hugh Shannon, Lakeland, for respondent.
   BOARDMAN, Acting Chief Judge.

The state petitions for writ of certiorari to review the circuit court’s affirmance of the county court’s order imposing community service upon respondent Samuel Henry Muoio in lieu of the mandatory fine prescribed for second offenders under section 316.193(2), Florida Statutes (1982 Supp.). The state contends the trial court was not authorized to substitute community service for the statutorily required fine. We agree and grant the writ of certiorari.

After pleading guilty to driving under the influence of alcoholic beverages (DUI), in violation of section 316.193(l)(a), respondent, who previously had been convicted of DUI, was sentenced to work twenty-five days for the Polk County Alternative Community Services (PCACS).

Respondent’s prior conviction and the mandatory minimum fine and jail term were brought to the trial court’s attention at the time respondent entered his guilty plea. Although the court acknowledged the mandatory nature of the fine, it chose to impose community service work time upon respondent in light of Muoio’s limited income and announced inability to pay a $500 fine except through installment payments of $25-30 each week.

Accordingly, the trial court sentenced respondent to thirty days in jail plus four months probation under the supervision of PCACS, with the conditions that he perform uncompensated work for twenty-five days and pay costs of twenty dollars per month. The probationary period was later extended by three months at respondent’s request.

Meanwhile, the state appealed to the circuit court, which ultimately (on May 6, 1983) affirmed on the ground that the county court had determined that respondent was indigent and unable to pay the minimum fine. The circuit court concluded that “where there is no possibility of performance, that is to say, to pay the fine with the ‘coin of the realm’ the trial court had the inherent power to cause the fine to be paid with goods and services.” Petitioner then filed the instant petition for certio-rari, to which respondent was requested to and did file a response. At some point before the response was filed, respondent successfully completed his probation.

Section 316.193(2) provides that a person convicted of a violation of subsection (1) “shall be punished” as provided therein, and section 322.281, Florida Statutes (1982 Supp.), provides that “[notwithstanding the provisions of s. 948.01,” which permits placement of a defendant on probation, “no court shall suspend, defer, or withhold ... imposition of sentence for any violation of s. 316.193” (emphasis supplied). It is clear that the legislature intended no deviation from the prescribed punishment for this offense. It is also clear that the legislature was cognizant at the time it passed the 1982 amendment to section 316.193 of the possibility of requiring a defendant to perform community service work as a part of his/her sentence, since it imposed such a requirement for first offenders under this section. § 316.193(4)(a).

In support of our decision reached here, we mention the case of State v. Gibson, 353 So.2d 670 (Fla. 2d DCA 1978), wherein we held that the sentencing requirements of section 775.087(2), Florida Statutes (1975) were mandatory and could not be circumvented. Accord D’Alessandro v. Shearer, 360 So.2d 774 (Fla.1978). See also Tascano v. State, 393 So.2d 540 (Fla.1981) (holding that the word “shall” in the rule of criminal procedure concerning jury instructions makes it mandatory that the trial court give the instruction on maximum and minimum penalties); Pridgen v. City of Auburndale, 430 So.2d 967 (Fla. 2d DCA 1983) (holding illegal, inter alia, the placement of a violator of a city ordinance on probation where the city code authorized fines and jail terms but did not authorize placing a defendant on probation).

All statutory references to community service work, such as those found in section 316.193(4)(a), section 775.091, Florida Statutes (1981), and section 948.031, Florida Statutes (1981), indicate that such service is to be considered either as an extra sanction or as an additional condition of probation and not as a substitute for some other type of punishment. Moreover, we know of no case law which suggests that a court has inherent authority to replace a mandatory fine with a term of community service work.

Respondent argues that the requirement of community service was proper because he was indigent and could not pay the fine. In support of this assertion, respondent cites Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), cases involving the unconstitutionality of subjecting a defendant to imprisonment solely because of his indi-gency. Respondent’s reliance on Williams and Tate is misplaced since no jail time or prison sentence was imposed on him due to his indigency and since he did not challenge the alternative afforded to him by the trial court.

In fact, Williams and Tate suggest an alternative solution to the problem here which the trial court could and should have utilized and which respondent himself requested. That option was to allow respondent to make weekly or monthly payments until the fine was paid in full rather than to require immediate payment of the full amount of the fine. Nothing in section 316.193 precludes such an arrangement.

Because other defendants may not have the ability to avail themselves of the option of paying their fines on the installment plan, we take this opportunity to urge the legislature to reconsider the sentencing provisions of section 316.193 with the objective of devising one or more alternatives to payment of the fine by indigents. As noted in Williams, the lack of alternatives to fines for indigents could “amount to inverse discrimination since it would enable an indigent to avoid both the fine and [punishment] for nonpayment whereas other defendants must always suffer one or the other conviction.” 399 U.S. at 244, 90 S.Ct. at 2024.

Our holding that a trial judge may not substitute community service for the minimum mandatory fine imposed by section 316.193 creates a double jeopardy problem in the instant case. Respondent has already worked for twenty-five days doing community service work without compensation. Assuming he worked eight hours on each of those days and that his services are valued at the current minimum wage of $3.35 per hour, he has performed services worth $670. Under these circumstances to order him to pay the $500 fine would be, in effect, to require him to pay the fine twice. The Fifth Amendment to the United States Constitution prohibits such a result. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Therefore, our decision reached here is prospective only and is not to be construed as requiring respondent to pay the fine in question.

Accordingly, we grant the writ of certio-rari and quash the circuit court’s opinion upholding the propriety of allowing an indigent to perform community service work in lieu of paying the minimum mandatory fine required by section 316.193, Florida Statutes (1982 Supp.).

DANAHY and LEHAN, JJ., concur.

      . Section 316.193(2) provides as follows:
      Any person who is convicted of a violation of subsection (1) shall be punished:
      (a) By a fine of:
      2. Not less than $500 or more than $1,000 for a second conviction
      ....; and
      (b) By imprisonment for:

        2. Not more than 9 months for a second conviction.
      Section 316.193(4) further provides:
      With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2):

      (b) For the second conviction within a period of 3 years from the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days.

      . It could be argued that this case is moot inasmuch as respondent has completed his probation. However, we believe that the challenged ruling here is “capable of repetition, yet evading review,” so that the mootness doctrine does not apply. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). When, as here, the challenged action is of too short a duration to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complaining party will be subjected to the same action again, review will be allowed. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

      . Section 775.087(2) provides as follows:
      (2) Any person who is convicted of any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes, and who had in his possession a “firearm,” as defined in subsection 790.001(6), or “destructive device,” as defined in subsection 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole, prior to serving such minimum sentence.


author: ORFINGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Scott CYPHERS, Appellee.
    No. 82-841.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Reversed on the authority of State v. Hicks, 421 So.2d 510 (Fla.1982).

DAUKSCH and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Jeffrey MAHAM a/k/a McClary, Appellant, v. STATE of Florida, Appellee.
    No. 82-920.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Jeffrey Maham has filed a timely appeal with this court contesting the length of sentences given for various crimes committed. Because Maham was classified as a youthful offender, we find that two of his three sentences are illegal and, accordingly, vacate those sentences and remand for re-sentencing under the Youthful Offender Act, section 958.05, Florida Statutes (1981).

Maham was charged with two counts of burglary of a dwelling, one count of grand theft in the second degree of a motor vehicle, and two counts of grand theft in the second degree. Maham entered pleas of nolo contendere to two counts of burglary of a dwelling and one count of theft of a motor vehicle. Under the terms of the plea negotiations, the maximum sentence Ma-ham would receive was seven years, plus a consecutive term of probation of undetermined length. Maham, however, was classified as a youthful offender and sentenced to seven years in a youthful offender facility for one count of burglary of a dwelling; three years in a youthful offender facility for theft of a motor vehicle (to run concurrently with the seven year sentence); and ten years of probation for burglary of a dwelling (to run consecutively to the seven year sentence).

Section 958.05 provides in part:

If the court classifies a person a youthful offender, in lieu of other criminal penalties authorized by law, the court shall dispose of the criminal case as follows:
(1) The court may place the youthful offender on probation in a community control program, with or without an adjudication of guilt, for a period not to exceed 2 years or extend beyond the 23rd birthday of the defendant.
(2) The court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years to be served in a community control program. The defendant shall serve the sentence of the court unless sooner release as provided by law.

Sentencing provisions of the Youthful Offender Act are the exclusive sanctions for a defendant who meets its criteria. Patterson v. State, 408 So.2d 785 (Fla. 2d DCA 1982); Waugh v. State, 406 So.2d 1238 (Fla. 2d DCA 1981); Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981).

Although Maham’s prison sentence did not exceed the terms of the plea bargain, because the trial court classified him as a youthful offender, only the three year sentence for grand theft of a motor vehicle is within the statutory limits of the Youthful Offender Act. The state concedes this point. Accordingly, we vacate the sentences of seven years imprisonment for one count of burglary of a dwelling and ten years probation for burglary of a dwelling, and remand to the trial court for resentenc-ing.

VACATED AND REMANDED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . § 810.02(3), Fla.Stat. (1981).

      . § 812.014, Fla.Stat. (1981).

      .§ 812.014, Fla.Stat. (1981).


author: COWART, Judge.

text:
    Sarah Jane SEDDON, et al., Petitioners, v. Fred M. HARPSTER, et ux, et al., Respondents.
    No. 83-678.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1983.

      Mary M. McDaniel of Ford & Minkoff, P.A., Tavares, for petitioners.
    W.C. Hutchison, Jr., of Hutchison & Má-mele, Sanford, for respondents Edmondson.
    No appearance for respondents Harpster.
   COWART, Judge.

The issue in this certiorari case is whether a claim for betterment compensation, asserted in an answer to a complaint for ejectment, matures into a petition for betterment which remains pending and may be adjudicated after rendition of a final judgment in the ejectment action. We hold that it does not and grant the petition for certiorari.

In 1975 in case number 75-1437 the Harp-sters brought an ejectment action against their neighbors to the east, the Seddons, alleging the true boundary between the Harpster and Seddon properties to be east of where the Seddons contended. In that controversy the Harpsters won and the Sed-dons lost. Seddon v. Harpster, 369 So.2d 662 (Fla. 2d DCA 1979), affirmed 403 So.2d 409 (Fla.1981). By “cross-claim” in the Harpster v. Seddon action, the Seddons sued their neighbors to the east, the Ed-mondsons, alleging the Edmondsons were wrongfully occupying the eastern portion of the Seddons’ property. In answer to the cross-claim the Edmondsons raised affirmative defenses of estoppel, adverse possession, boundary by agreement and boundary by acquiescence. The Edmondsons’ answer to the Seddons’ cross-claim also contained an allegation that the Edmondsons had placed improvements on the disputed land and were entitled to betterment compensation. The trial court held for the Edmond-sons on the theories of estoppel, acquiescence and boundary by agreement. While the judgment for the Edmondsons was on appeal, the Edmondsons conveyed the disputed property and the improvements thereon, to third parties (Bartholomew and Jones). In the Seddons’ appeal of the Ed-mondson judgment this court reversed the trial court and directed the trial court to enter a final judgment in favor of the Sed-dons entitling them to the disputed property. Seddon v. Edmondson, 411 So.2d 995 (Fla. 5th DCA 1982). A final judgment of eviction pursuant to this court’s mandate was rendered on May 13, 1982.

Section 66.041, Fla.Stat. (1981), provides in part:

If a judgment of eviction is rendered against defendant, within 60 days thereafter, or if he has appealed, within 20 days after filing the mandate affirming the judgment, he may file in the court in which the judgment was rendered a petition [for betterment], (emphasis supplied)

In the sixty day period following rendition of the final judgment no petition for betterment was filed by either the Edmond-sons or their grantees. Pursuant to the final judgment, the Seddons demanded possession of the property, occupied by the Edmondsons’ grantees. The Edmondsons’ grantees, on August 6,1982, in case number 82-1318, sued the Edmondsons for rescission alleging the Edmondsons had misrepresented the boundaries of the property conveyed and had failed to inform them that a portion of the land was involved in litigation. The Edmondsons then filed a motion to consolidate the suit for rescission (case number 82-1318) with the original suit by the Harpsters against the Seddons, in which the Seddons had “cross-claimed” against the Edmondsons, Case No. 75-1437. The trial court granted the motion, finding that the Edmondsons’ answer to the Seddons’ cross-claim in Case No. 75-1437 should be treated as a petition for betterment and consolidated with the Bartholomew v. Edmondson case so that whoever won the Bartholomew v. Edmondson suit would be able to claim betterment damages against the Seddons. In this case the Seddons seek certiorari review of this order of consolidation.

At the time the Edmondsons’ motion to consolidate was filed on March 9, 1983, nearly ten months had passed since the rendition on May 13, 1982, of a final judgment pursuant to mandate in the Harpster v. Seddon v. Edmondson action, Case No. 75-1437. Once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and that the rights determined and fixed by it are properly enforced. See 13 Fla.Jur.2d Courts and Judges § 31 and cases cited therein. Therefore, the trial court was without authority or jurisdiction to attempt to resurrect any dead cause of action for betterment believed to have been contained in case number 75-1437 which had been finally interred in the final judgment in that case and to attempt to consolidate it with the causes of action involved in case number 82-1318.

Furthermore, a cause of action for betterment is purely statutory, Brown v. Johns, 312 So.2d 526, 527 (Fla. 1st DCA 1975); Bailey v. Bailey, 114 So.2d 804, 805 (Fla. 1st DCA 1959), and a claim for betterment compensation in an answer to a complaint for ejectment is a nullity. McRae v. Preston, 54 Fla. 190, 44 So. 946 (1907). The purpose of the betterment statute is to provide an efficient and effective means by which the issues available thereunder can be presented within a reasonable period of time (60 days) after final judgment in a suit evicting a defendant from real property or within a more limited period (20 days) after an appeal by such defendant has failed its objective. Volusia Fern Company, Inc. v. Cox, 393 So.2d 1126 (Fla. 5th DCA 1980); Bailey v. Bailey, 114 So.2d 804 (Fla. 1st DCA 1959). Section 66.041, Florida Statutes (1981), clearly states that a petition for betterment is to be filed within sixty days after a judgment of eviction is rendered against a defendant. Section 66.051, Florida Statutes (1981), allows the plaintiff in the judgment of eviction to file written defenses to the petition for betterment within twenty days after service of the petition and section 66.061, Florida Statutes (1981), provides for trial on the issues made. It is clearly not contemplated by the statute that a paragraph in an answer to a complaint for ejectment setting out the affirmative defense of adverse possession and a paragraph alleging simply that improvements have been made and that betterment compensation is demanded, may, ten months after final judgment in the ejectment action, be considered and treated as a prematurely filed petition for betterment.

Finally, we note respondents contention that a decision against them will result in the unjust enrichment of the Sed-dons, who will retain the improvements placed upon their land by the Edmondsons without having to make compensation. The statutory right to betterment compensation is a right which, like many other rights, may be waived. Although the Edmondsons conveyed the land which is in dispute prior to the judgment of eviction against them they were not barred by the betterment statute from filing a petition for betterment following rendition of the judgment of eviction. The statute requires only a defendant to have been in possession prior to commencement of the ejectment action. There is no requirement that the defendant be in possession at the time the betterment petition is filed. Our decision herein does not mean that a defendant in ejectment can always convey the disputed lands and the improvements thereon and, as against their own grantee, retain both the amount of the purchase price allocable to the improvements and any compensation awarded in the betterment action. Here, the Edmond-sons had standing to file a betterment petition within the statutory time limit and they simply failed to do so.

Because the trial court was without jurisdiction to “consolidate” allegations in the pleadings in the completed case number 75-1437 with case number 82-1318, the order of consolidation and the order adding parties defendant in case no. 75-1437 are

QUASHED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . § 66.041, Fla.Stat. (1981).

      . When a trial court acts without or in excess of its jurisdiction certiorari is a proper remedy. Robbins v. Pfeiffer, 407 So.2d 1016 (Fla. 5th DCA 1981); Hawaiian Inn of Daytona Beach v. Snead Constr. Corp., 393 So.2d 1201 (Fla. 5th DCA 1981). Without a timely filed petition for betterment a trial court has no jurisdiction to consider a claim for betterment compensation.

      . The current version of the statute has been unchanged since 1967.


author: MILLS, Judge. ERVIN, Chief Judge,

text:
    Leroy REED, Appellant, v. STATE of Florida, Appellee.
    No. AO-324.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Reed appeals a jury verdict finding him guilty of the second degree murder of his wife, Denise. The question before us is whether the trial court erred in excluding certain testimony of two defense witnesses. The trial court did not err and we affirm.

After the discovery of the body of Reed’s wife and after the police arrived, a crowd gathered outside the Reed residence. Two neighbors in the crowd stated that a man called “Frank” said that Denise had been killed and that she had been stabbed in the chest about twelve times. They gave a description of “Frank” similar to that given by another neighbor who testified that he saw a strange male enter and leave the Reed residence earlier during the day and during Reed’s absence. “Frank’s” statement was made ten to fifteen minutes before the police announced that Denise had been found dead of multiple stab wounds.

The State’s objection that “Frank’s” statement was hearsay was sustained by the trial court.

Reed contends here that the statement was not hearsay because- it was not offered to prove the truth of the matters contained in the statement but to show that a third party had detailed knowledge of the crime before any details were publicly revealed by the police.

The defense did not present this argument to the trial court. It argued there that the statement was admissible because the declarant was not available and the statement was against his interest. No argument was made that the statement was not hearsay.

Reed is confined to the record developed in the trial court. Castor v. State, 365 So.2d 701 (Fla.1978). Because he did not present the argument made here to the trial court, it cannot be considered by this Court. Steinhorst v. State, 412 So.2d 332 (Fla.1982); Parker v. State, 369 So.2d 112 (Fla. 1st DCA 1979).

Reed did not argue in the trial court nor does he argue here that “Frank’s” statement was an admission against penal interest which was shown to be trustworthy by corroborating circumstances as required by Section 90.804(2)(c), Florida Statutes (1981). Nor would the facts support this argument.

Neither did Reed argue below that the exclusion of the testimony would violate his due process rights under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and makes only a passing suggestion of this here.

The excluded testimony was clearly inadmissible hearsay for the reasons so logically and clearly set forth in U.S. v. Muscato, 534 F.Supp. 969 (E.D.N.Y.1982).

AFFIRMED.

LARRY G. SMITH, J., concurs.

ERYIN, Chief Judge, specially concurs with opinion.

ERVIN, Chief Judge,

specially concurring.

Although I agree with the majority in affirming, I do so on the sole basis that the out-of-court statement sought to be admitted was in fact hearsay, and because it did not fall within one of the exceptions enumerated under section 90.803, Florida Statutes, it was therefore inadmissible. If the statement could be fairly considered not hearsay, I would otherwise agree with appellant that the error was preserved and would reverse.

At the beginning of the appellant’s presentation of the case, defense counsel requested permission to have admitted into evidence two out-of-court statements overheard by two persons whose video-taped depositions had been taken and who were unavailable to testify at trial. The purpose for the admissibility of the two statements was, as related by defense counsel, not to vouch for the truth of the matters asserted in them, but to reveal the state of mind of the declarant. Defense counsel sought first to have admitted a statement which was unrelated in its factual content to the second statement. In denying the motion to admit the first statement, the court responded:

Well, how do you — how do you get around — I know that expression, I have heard it a hundred times and I have never understood what it means. We don’t offer this for the truth for what it was said, but for the state of mind of the declarant that it was said. If you don’t— to me it’s so obviously hearsay that the State or the other party cannot rebut it insofar as the state of mind or the truthfulness or anything else. I don’t understand, I have never understood what that rule means, I am sorry, I am obtuse, I remember it in law school. It came across once a week, but I have never understood what it means.
I have never understood how you can possibly say, okay, but this is hearsay, but we are going to let it in because we are not asserting the truth of what was said but rather the state of mind of the de-clarant. Seems to me that’s the reason for hearsay.

Shortly thereafter, an objection to the admissibility of the later statement was sustained on the ground of hearsay. And it is the denial of this statement that is urged as error on appeal. The second statement, if admitted, would have attributed Frank, the declarant, as saying that the victim was stabbed in the chest some twelve times. The reason offered by defense counsel for its admission was that “It’s a statement against interest of a third party....” Because the statement’s trustworthiness could not be established, it was not one that could be admitted as a statement against the declarant’s interest. See section 90.-804(2)(c). At any event, appellant does not now argue that the statement was properly admissible as a statement against interest, but rather as one not covered by the hearsay rule. The majority’s opinion perceives appellant’s position as inconsistent- with that advanced at trial and holds the error not preserved.

The given reason was clearly inconsistent with that offered for the earlier statement’s admissibility; nevertheless the trial court had already been generally apprised of counsel’s position, had stated that it did not understand why the other statement sought to be admitted would not be hearsay, and had ordered it excluded from evidence. Following close on the heels of the court’s prior ruling, it fairly seems to me that defense counsel’s alternative theory of admissibility was offered in the belief that, as the court had already acknowledged it did not understand counsel’s earlier contention for admitting the first statement, any further argument along those lines would be futile.

We have recognized in interpretating Florida Rule of Criminal Procedure 3.390(d) —precluding a party from assigning an error on appeal unless a timely objection was raised at the trial level — that the rule was not “intended to approve or disapprove a special word formula.... ” Hubbard v. State, 411 So.2d 1312, 1314 (Fla. 1st DCA 1982). We have also held that an error will be preserved as long as “the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, that the judge was given a clear opportunity to rule upon the objection.” Id. at 1314-1315. See also Rivers v. State, 425 So.2d 101, 105 (Fla. 1st DCA 1982) (error “marginally preserved for appellate review.”). Therefore, if the statement can be considered to fall outside the definition of hearsay, I would agree with appellant that the error was preserved.

I concur, however, with affirming on the basis that the statement was in fact hearsay and therefore inadmissible. Section 90.-801(l)(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (e.s.) Because the distinctions between hearsay and non-hearsay statements have not always been clearly observed, the following examples may more clearly illustrate the differences than would a lengthy exposition. Thus, if the declarant says, “I am Caesar,” the statement is not hearsay if the purpose of its admission is not to prove the fact contained in it but rather that the person who made it is insane. Ehrhardt, Florida Evidence s. 801.3 p. 233 (1977). Under those circumstances an inference may be drawn that the person is insane. Id. Similarly, the out-of-court statement of the driver of an automobile, involved in an accident, recounting that another vehicle ran a stop light may be admissible if it is offered for the limited intention of showing that the declarant was conscious following the accident. Id. s. 801.2. To summarize, if the out-of-court statement is offered for a purpose other than for proving the truth of its contents, the only restriction generally on its admissibility is that it be relevant to some material fact at issue. Id.

The primary difficulty in deciding whether to admit a statement as it relates to a declarant’s knowledge of certain facts, offered not to prove the facts stated within it, but to infer the existence of other facts, is in establishing its reliability. Here we have an out-of-court statement, offered not to prove the fact that the victim was stabbed twelve times in the chest, but to create a reasonable doubt as to the defendant’s guilt because the statement, it is argued, reveals that the declarant’s knowledge of the events was obtained at a time when only he could have committed the crime. In my judgment the statement was hearsay because it depended for its value upon the veracity of the events remembered, and was properly barred pursuant to the provisions of section 90.803(3), which generally exclude from evidence after-the-fact statements of memory when offered to prove the facts remembered, or when made under circumstances revealing their unreliability. Section 90.803(3)(b)2.

Ehrhardt states that section 90.803(3) adopts the views of the United States Supreme Court in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892) and Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), which taken together hold “that a statement of the declarant’s then-existing state of mind is admissible to prove or explain the declarant’s subsequent conduct but not his prior conduct.” Ehrhardt, supra at s. 803.3B, p. 261. For example, a statement by the declarant that he intends at a specific time in the future to go to Miami is admissible to prove that he went to Miami at the time he said that he would; on the other hand, the declarant’s statement in the presence of a witness that he went to Miami the preceding week is barred by the statute for the purpose of proving that he did in fact go. The reason for excluding after-the-fact statements of memory is that “[i]f these statements were admitted it would be easy for any individual to manufacture evidence to prove facts that had occurred in the past.” Id.

There is, however, authority predating the adoption of the Florida Evidence Code supporting appellant’s position that the statements sought to be admitted are not hearsay. In Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945), the Wisconsin Supreme Court held that the trial court properly allowed as evidence against a defendant, charged with mistreatment of a seven-year old girl, the girl’s out-of-court statement relating a description of the house and its surroundings where the crime occurred. The statement was properly admitted, the court held, not on the basis that the articles described were in fact those in the room, but to show that at the time the statement was made, a month before the time of the later discovery of the room, the girl had “knowledge as to articles and descriptive features which, as was proven by other evidence, were in fact in or about that room and house.” 19 N.W.2d at 535. The court thereupon held that the statements did not fall within the ambit of hearsay.

Professor Morgan, writing in the Harvard Law Review, has criticized the Bridges result, saying that the court “neglected to note that the drawing of such an inference [that the girl’s statement would be used as circumstantial evidence for the purpose of showing that she had been in the room] required the jury to rely upon the observation, memory and veracity of the girl, and thus encountered the essential features of hearsay.” Morgan, Evidence 1941-1945, 59 Harv.L.Rev. 481, 544 (1946). Yet, because the reliability of the statement was established by other witnesses who also viewed the room, as well as by the fact that the girl was available to testify at trial, he concludes that although the evidence as such was hearsay, it nevertheless “should have been received as a rational exception to the hearsay rule for it had much greater guarantee of trustworthiness than many of the recognized exceptions.” Id. (e.s.) Morgan’s views would seem to correspond closely with those provisions of the Evidence Code, later adopted as section 90.803(3).

Dean McCormick, in his analysis of the Bridges case, disagrees with Morgan’s conclusion that the statement was hearsay. He offers, however, the following cautionary comments concerning the admissibility of such utterances:

When the existence of knowledge is sought to be used as the basis for a further inference, caution is required lest the hearsay rule be infringed upon. Thus, in a Wisconsin case evidence was received in a trial for mistreatment of a little girl, that the girl in reporting the incident gave a description of the house and its surroundings and of the room and its furnishings, where the mistreatment occurred. Other evidence showed that this description fitted exactly the house and room where the defendant lived. Morgan suggested that this evidence depended for its value upon “the observation, memory and veracity” of the girl and thus shared the hazards of hearsay. It seems, however, that the testimony had value without regard to her veracity. Other witnesses had described the physical characteristics of the house. Her testimony was not relied on for that, but to show her knowledge as a “trace,” as it were, on her mind of her visit at the time of the crime. Significantly the undisputed proof excluded the possibility of other means by which she could have acquired the knowledge, and thus the hearsay dangers were eliminated. However, statements of memory or belief are not generally allowed as proof of the happening of the event remembered or believed, since allowing the evidence would destroy the hearsay rule. For this purpose, knowledge would seem to be indistinguishable from memory and belief, save under unusual circumstances.

McCormick on Evidence, s. 249, p. 592 (1972) (footnotes omitted) (e.s.).

McCormick, although adhering to the view that a declarant’s statement evincing his or her knowledge is not hearsay, when it is used as the basis for a further inference, nevertheless would not allow the statement to be received as evidence if its reliability cannot be corroborated. This view seems to me at variance with the Florida Evidence Code’s definition of hearsay, contained in section 90.801(l)(c), which excludes only statements “offered in evidence to prove the truth of the matter asserted ... ”, and does not otherwise have a provision relating to a non-hearsay statement’s reliability as a condition to its admissibility, as does section 90.803(3)(b)2, relating to hearsay exceptions.

In my judgment, the statement sought to be admitted in the case at bar was hearsay as it depended for its value upon the observations and veracity of the declarant. The declarant’s knowledge of the victim’s stab wounds was sought to be used as the basis for the further inference that only Frank could have committed the crime as he was inside the dwelling at a time when no one else was aware of the details of the homicide, thereby casting a reasonable doubt on the guilt of the accused. Under such circumstances, I am of the view that the utterance should have been excluded as an after-the-fact statement of memory or belief which was offered “to prove the fact remembered or believed.... ” Section 90.-803(3)(b)l.

Even if the statement before us can be said not to fall within the definition of hearsay, it would still be inadmissible under McCormick’s theory because its trustworthiness could not be established. It is true that some of the particulars of the out-of-court statement were corroborated by the announcement made by the medical examiner before a crowd gathered around the house, and in presence of the news media, that the victim had been found dead of multiple stab wounds inside her home, and also by the testimony of a forensic pathologist at trial, stating that an autopsy had been conducted on the body of the deceased and had revealed numerous stab wounds, including nine in the chest and ten in the back. Nevertheless, the statement’s reliability depended on verifying the fact that Frank’s knowledge could have been obtained by his observation of the body at a time when no one else was present. Only the unavailable witnesses to the declaration could state with any certainty that Frank had not gotten his information from one or more of the officers at the scene, rather than from his personal observations of the decedent’s body at a time when no one else was present. The accuracy of their information could not be tested by cross-examination in the presence of the jurors. This is precisely the type of out-of-court statement which should be excluded because of the obvious ease with which it can be fabricated to prove facts that ostensibly have occurred in the past.

Under the circumstances stated, I agree to affirm.


author: BOOTH, Judge.

text:
    Michael MAHONEY, Appellant, v. SEARS, ROEBUCK & COMPANY and Crawford & Company, Appellees.
    No. AP-299.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Alex Lancaster, Sarasota, for appellant.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   BOOTH, Judge.

Claimant appeals an order of the deputy commissioner denying his request for'future remedial medical care for his eyes. Testimony establishes that medical care will be required due to the industrial accident, but at a time in the future probably beyond the two-year statute of limitations of Section 440.19(2)(b), Florida Statutes. Claimant, an 18-year-old, suffered 80 percent loss of vision in his left eye, the equivalent of loss of the eye under Chapter 440, for which he was limited by the statute then in effect to an award of $1,200 permanent total disability benefits.

The deputy commissioner ruled that he was without authority to abrogate the statute of limitations prospectively, so as to preserve claimant’s rights to medical benefits anticipated to arise beyond the two-year statutory period. We reluctantly agree and affirm the order appealed. Western Liquors Corporation v. Studer, 391 So.2d 250 (Fla. 1st DCA 1980); Goodyear Service Store v. Rockey, 382 So.2d 816 (Fla. 1st DCA 1980); Luv Auto Sales, Inc. v. Murphy, IRC Order 2-3567, cert. dismissed, 373 So.2d 459 (Fla.1979). It is unfortunate that, although probable need for future medical care to alleviate the effects of claimant’s industrial accident has been established, claimant must go through the form of receiving remedial care every two years in order to preserve the right to future benefits. It is contrary to the basic principles of Chapter 440 to exalt form over substance, particularly where the result is to deprive the worker of needed medical care. However, as recognized by the deputy, it is not the province of the deputy or of this Court, but of the Legislature, to supply appropriate remedy for claimants such as this.

Accordingly, the order below is AFFIRMED.

MILLS and SHIVERS, JJ., concur.

      . Mahoney v. Sears, Roebuck & Company, 419 So.2d 754, 755 (Fla. 1st DCA 1982).


author: SHIVERS, Judge.

text:
    Gordon WASHINGTON, Appellant, v. Lcuie L. WAINWRIGHT, Appellee.
    No. AP-497.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Gordon Washington, pro se, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

The order denying appellant’s petition for writ of habeas corpus is affirmed without prejudice to seek post-conviction relief, pursuant to Rule 3.850, Fla.R.Crim.P.

MILLS and ZEHMER, JJ., concur.


text:
    Keith BARNHILL, a/k/a Donald Ray Barnhill, Appellant, v. STATE of Florida, Appellee.
    No. AQ-330.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1983.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst.- Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

We affirm appellant’s conviction for indirect criminal contempt. The petition for a rule to show cause filed by the State Attorney was sufficient to comply with the requirements of Rule 3.840(a)(1), Fla.R. Crim.P. See Vernell v. State, 212 So.2d 11 (Fla. 3d DCA 1968); Starchk v. Wittenberg, 411 So.2d 1000 (Fla. 5th DCA 1982). Moreover, the requirements of Rule 3.840(a)(6) were met in this case by the trial judge orally stating on the record the underlying facts constituting the contempt. See generally Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979) and Phipps v. State, 352 So.2d 102 (Fla. 1st DCA 1977).

AFFIRMED.

MILLS and ZEHMER, JJ., concur.