text:
    Charles TURNER, D.D.S. and Chubb Group Insurance, Appellants, v. Waydean D. HARMON, Appellee.
    No. AR-178.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    Rehearing Denied Nov. 2, 1983.

      Bernard J. Zimmerman and Paul J. Morgan, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    J. Michael Matthews, Altamonte Springs, for appellee.
   WIGGINTON, Judge.

As the sole issue for review in this workers’ compensation case, employer/carrier contend that the deputy commissioner erred in finding appellee’s hand injury compensa-ble. We agree and reverse.

On September 16, 1981, while performing the task of cleaning her employer’s office, appellee sustained an industrial injury to her right hand by accidentally hitting it on a wooden surface. She noticed immediate swelling and the appearance of a big knot. Dr. Stevens initially treated appellee and instructed her to return to work.

The employer/carrier responded to appellee’s request for examination by an appropriate specialist and she was referred to Dr. Urbach, an orthopedic surgeon who first saw her in October of 1981. At that time, his examination revealed no indication of a hematoma but he found the need for exploratory surgery to determine the nature of a mass detected in appellee’s hand. Dr. Urbach performed the surgery in November, 1981 and excised the mass, finding it to be a “huge lipoma, which is a fatty tumor.” His testimony was that such tumors have no known cause and her tumor would have taken at least three to six months to develop. He believed that the tumor was the cause of appellee’s pain but, finding no evidence of hemorrhaging in the area, opined that it was not related to the trauma she suffered on September 16. He concluded that if the accident had aggravated the lipoma and caused superficial hemorrhaging, then that aggravation had subsided by the time of the surgery.

Employer/carrier initially accepted the injury as compensable and paid temporary total disability benefits from September 16 to December 9 and paid appellee’s medical bills through the time of her surgery. Ap-pellee filed her claim for continuing temporary total disability benefits as well as attorney’s fees, costs, interest, penalties, and medical bills incurred after the date of surgery.

The deputy found the injury to claimant’s right hand compensable based upon her testimony and that of Dr. Urbach, who stated that the trauma of the accident “could have aggravated the preexisting lipoma at least temporarily.” The deputy’s order further concluded that causation does not have to be proved within reasonable medical certainty or probability and may be proved by lay testimony in matters within the witness’s experience.

Substantial competent evidence does not support the deputy commissioner’s finding of compensability. No evidence in the record causally relates appellant’s present hand condition to her accident. Dr. Urbach stated conclusively that the lipoma was not causally related to the hand trauma suffered by appellee on September 16. Benefits for any possible aggravation of the lipoma have already been paid.

Contrary to the deputy’s conclusion, proof of causation between an accident and a condition, in a workers’ compensation claim, must be based upon reasonable medical probability. See Metric Constructors, Inc. v. Chiles, 429 So.2d 1292 (Fla. 1st DCA 1983), and cases cited therein. In Chiles, the medical testimony established a “possible, but not probable,” relationship between the industrial accident and subsequent epi-didymitis. Mr. Chiles could only add that his pain began to occur after the injury. This Court cited error in the deputy’s finding of compensability because neither the doctor’s speculation as to the cause nor the lay testimony of Mr. Chiles — of his experiencing pain — was sufficient to establish causation based upon reasonable medical probability. Chiles at 1293.

REVERSED.

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


source: Caselaw Access Project

author: PER CURIAM. MILLS, Judge,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Lisa W. ARATA, Appellee.
    No. AR-405.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellant.
    Lloyd L. Vipperman, Jr., Gainesville, for appellee.
   PER CURIAM.

AFFIRMED. Smith v. State, 344 So.2d 915 (Fla. 1st DCA), cert. denied, 353 So.2d 679 (Fla.1977).

SHIVERS and ZEHMER, JJ., concur.

MILLS, J., dissents, with opinion.

MILLS, Judge,

dissenting.

I dissent. I would reverse the trial court’s order granting Arata’s motion to suppress intercepted telephone conversations between her and her husband concerning joint criminal activity which were obtained by a court authorized order pursuant to Chapter 934, Florida Statutes (1981).

The trial court granted Arata’s motion on authority of Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977). I would recede from Smith, supra.

The majority of the Smith panel refused to except from the marital privilege communications made in furtherance of crimes because of the harm it would inflict upon the strong policy underlying the privilege.

In my judgment, public policy is not served by protecting spouses who jointly engage in criminal activities and then assert the privilege as a shield against prosecution. Marital communications having to do with the commission of a crime and not with the privacy of the marriage itself should not fall within the privilege’s protection. United States v. Entrekin, 624 F.2d 597 (5th Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 350 (1981); United States v. Mendoza, 574 F.2d 1373 (5th Cir.), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978); United States v. Neal, 532 F.Supp. 942 (D.Colo.1982).

Professor Charles W. Ehrhardt, author of the Florida Evidence Code, recently made the following comment on the exception to the marital privilege:

The Fifth Circuit has recognized an exception to marital communication privilege when the communication is between husband and wife about crimes in which they are jointly participating when the communication occurs. The court reasoned that these communications are not marital communications for the purpose of the privilege [see United States v. Entrekin, 624 F.2d 597 (5th Cir.1980)]. There is no similar exception in the Evidence Code although the interests of justice would be served if the privilege were not recognized in this situation.

Ehrhardt, 5 Fla.Prac.Evidence, Sec. 504.5 (1982 pocket part at p. 60) (emphasis added).

It is obvious to me that the use of properly obtained wiretapped telephone conversations of spouses about crimes in which both spouses participated would not offend family harmony or public policy. United States v. Kahn, 471 F.2d 191 (7th Cir.1972). Why should a husband and wife who are engaged in criminal activity be treated differently than any other two individuals engaged in crime? Why should society be interested in preserving such a family relationship? Justice is truth in action. Truth should prevail.

I would reverse.


author: COWART, Judge.

text:
    Cynthia CAMPOS, individually, etc., et al, Appellants, v. W.C. DEMETREE, etc., et al, Appellees.
    No. 83-198.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.
    Hubert C. Childress, Jr., of Bross, Tracht-man, Henderson & Childress, P.A., Titus-ville, for appellants.
    E. Clay Parker and Scott H. Michaud of Parker, Johnson, Owen & McGuire, Orlando, for appellees.
   COWART, Judge.

The order dismissing the claim of Tanaya Covert must be affirmed only because she suffered no physical impact. In order to permit Tanaya to preserve the question (if she desires to do so), we again certify to the Florida Supreme Court as a matter of great public importance the same question certified in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982).

AFFIRMED.

QUESTION CERTIFIED.

FRANK D. UPCHURCH, Jr., J., and MILLER, Associate Judge, concur.


author: CAMPBELL, Judge.

text:
    Jonathan Michael BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 82-1076.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1983.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J, Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Jonathan Michael Bennett, broke into and’ entered a school in Lee County. While inside the school, he was apprehended and later arrested. After being given his Miranda warnings, appellant admitted breaking into the school but maintained that he did so only so that he could use a telephone. The state later charged appellant with burglary, alleging in the charging document that he broke and entered with the intent to commit a theft. At trial, the jury found appellant guilty as charged.

On appeal, appellant challenges the denial of his motion for acquittal and the overruling of his objections to the introduction of evidence of prior break-ins. Because of our supreme court’s recent decision in State v. Waters, 436 So.2d 66 (Fla.1983), we need only address the first point raised.

In Waters, the defendant had been charged with attempted second degree burglary. The information alleged that the defendant, like appellant here, broke and entered with the intent to commit theft. The defendant in Waters was convicted, and the state argued on appeal that it did not need to plead intent to commit a specific offense and that whether it did or did not so plead, section 810.07, Florida Statutes (1981), could be used to prove the requisite criminal intent. The fourth district framed these two state arguments into certified questions, and upon review of those questions, the supreme court held that “in a burglary charge it is not per se required that the particular offense which the accused allegedly intended to commit in the premises be specified.” Waters, 436 So.2d at 69. The court also held that the statutory language of section 810.07 allows the state, during the course of a burglary trial, to prima facie establish the intent to commit an offense if the state has not charged the intent to commit a specific offense.

We read Waters to stand for three separate, though interrelated, propositions. First, when the state, either by indictment or by information, charges someone with burglary, the state need not allege that the accused intended to commit a specific offense after the breaking and entering occurs. For example, the state may or may not allege in the charging document that the accused broke and entered with the intent to commit an offense therein, to wit: sexual battery. Second, if the state does not allege that the accused intended to commit a specific offense, section 810.07 may be used as an alternative method to prima facie establish that a defendant has the intent to commit an unspecified offense after the breaking and entering occurs. Third, if the state charges that a defendant did intend to commit a specific offense after the breaking and entering occurs, then the state must prove that the defendant did in fact intend to commit this offense. Furthermore, when the state does so charge, the proof must be established without the benefit of section 810.07.

Our conclusion finds further support in the recent Florida Supreme Court decision in Justus v. State, 438 So.2d 358 (Fla.1983). There, the court, in interpreting section 787.01(l)(a)2, Florida Statutes (1977), stated that in making a charge of kidnapping, the state is not required to state the specific felony that is intended to be committed or facilitated by means of the kidnapping. The supreme court’s twin interpretation of the kidnapping statute and of the burglary statute makes sense and does not prejudice the defendant because any potential vagueness that may initially appear in the charging document may be remedied by filing a bill of particulars or by engaging in other approved methods of criminal discovery.

Our interpretation of Waters requires us to reverse appellant’s conviction. This is so because the state’s information charges that appellant “did unlawfully enter or remain in a certain structure, to wit: Park Meadow School ... with the intent to commit an offense therein, to wit: theft.” Thus, the state specifically alleged that appellant intended to commit a specific offense once the breaking and entering occurred. Having done so, the state was required to prove that appellant had the intent to commit the theft. In Waters, the defendant’s burglary conviction was affirmed because the state demonstrated that the circumstances present in that case could only lead to the conclusion that the defendant did intend to commit a theft. Here, the circumstances are somewhat different. They do not isolate the intended crime of theft here as they did in Waters, for here the appellant could have intended to commit any number of offenses. For example, he could have as easily broken and entered the school to commit arson or otherwise destroy school property. In addition, he could have merely intended to use the telephone, as he stated at trial during the course of his unrebutted testimony. Since section 810.07 only applies when no specific offense is alleged in an information charging burglary, the state cannot rely on the presumption contained in that statute since here it has alleged a burglary with the intent to commit the specific offense of theft. Accordingly, appellant’s conviction is reversed and his sentence is vacated. Appellant must be discharged and no retrial will be permitted.

HOBSON and GRIMES, JJ., concur.

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

      . In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

      . Commit or facilitate commission of any felony.


author: RYDER, Judge.

text:
    Norman Gene COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2321.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1983.

      Jerry Hill, Public Defender, Bartow, Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Norman Gene Collins challenges his conviction for burglary of a structure and grand theft in the second degree. He urges four grounds for reversal, one of which is that the circumstantial evidence against him was insufficient as a matter of law. Because we agree and reverse as to this ground, we need not address the other grounds raised.

The charges against appellant and his codefendant, Alvin T. Scott, arose from a burglary of a Winn-Dixie store. The crux of the state’s argument was that appellant aided and abetted in transporting Scott to the store, acting as a lookout, helping “case” the building prior to the burglary, and returning to the scene to help Scott escape.

A review of the evidence presented at trial is necessary for a complete understanding of the instant case. Gary Jarvie, a security guard on duty for Ernie Haire Ford, observed a silver-colored vehicle drive into the parking lot and stop in front of the Winn-Dixie store across Florida Avenue at approximately 1:40 a.m. Jarvie had seen the same car about one-half hour earlier going up and down the street between the two businesses. A black man with a crowbar in his hand exited the car, pried open one of the Winn-Dixie doors, entered, and began putting something into white garbage bags. The vehicle, which had left the scene while the prying took place but returned about thirty seconds before the police arrived, departed from the premises again. Police arrested Scott at the scene, confiscated two garbage bags filled with cartons of cigarettes, and placed a radio alert for the vehicle.

In response to the alert, a police officer initiated a traffic stop of a ear and driver which fit the description given and which appeared to be leaving the burglary scene. Appellant, driver of the vehicle, jumped out of the car, asked why he had been stopped, and then stated that he was “just going out for some milk.” When witness Jarvie arrived and identified appellant and his vehicle as the ones he had seen at the Winn-Dixie, appellant was arrested. The vehicle, an Oldsmobile, had a single trunk key inserted into the lock, a rope tied on the inside of the trunk hanging outside, and clear windows.

At trial Jarvie testified repeatedly that the car he had seen was a large silver Continental or Cadillac with tinted windows driven by a black man. Furthermore, he testified that because the parking lot was unlit and the vehicle windows were tinted, he could not say for sure that appellant’s vehicle or appellant was the same vehicle and driver he saw in front of the Winn-Dix-ie store.

At the close of the state’s case-in-chief, defense counsel moved for a judgment of acquittal based in part upon the ground that no evidence had been presented to indicate appellant’s involvement beyond his alleged presence at the scene. The trial court denied the motion.

Although the automobile appellant was driving arguably fits the description of the vehicle which dropped off Scott at the Winn-Dixie, and appellant exhibited somewhat questionable behavior when stopped by the police, we agree with defense counsel’s argument that there was no evidence of any relationship between appellant and Scott to indicate that appellant knew Scott, was aware of Scott’s activities, or did something, other than merely being present in the vicinity, by which appellant intended to help commit the burglary.

In order for one to be guilty of a crime physically committed by another, he must not only have the conscious intent that the criminal act be committed, but he must also do some act to assist the other person to actually commit the crime. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978). Mere knowledge that an offense is being committed is not the same as participation with criminal intent, and mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation. Interest of R.W.G. v. State, 395 So.2d 1279 (Fla. 2d DCA 1981); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981).

Where two or more inferences in regard to the existence of criminal intent and criminal acts must be drawn from the evidence and then pyramided to prove the offense charged, the evidence lacks the conclusive nature to support the conviction. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Chaudoin at 402; G.C. at 640. Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Stuckey v. State, 414 So.2d 1160 (Fla. 3d DCA 1981). In the case sub judice, four inferences had to be made from the circumstances and evidence presented, namely that (1) the car appellant was driving was in fact the car that dropped off Scott; (2) appellant was the person driving the car when Scott was dropped off; (3)' appellant knew when he drove the car to the Winn-Dixie and dropped off Scott that Scott intended to burglarize the store; and (4) appellant’s intention was to actively assist Scott in the burglary and/or share in the benefit. Because these inferences had to be combined and pyramided for one to conclude that appellant was guilty of burglary and theft, they are insufficient to support his convictions as a principle.

Finally, although it appears from the allegations and the police officer’s testimony that appellant was identified to the police, our review of the record produced at trial indicates that appellant was never identified by Jarvie as the driver of the ■vehicle. Rather, Jarvie’s identification of appellant and the vehicle was ambivalent. As there was nothing truly to connect appellant with the crime or to exclude his reasonable hypothesis of innocence, we hold that appellant’s alleged behavior on the night Scott attempted to burglarize the Winn-Dixie provides insufficient evidence to sustain appellant’s convictions and those convictions are, therefore, reversed. This case is remanded with directions to the trial court to discharge appellant.

REVERSED and REMANDED.

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


author: DANAHY, Judge.

text:
    Louis Lee SNELL, a/k/a L.L. Snell, Appellant, v. STATE of Florida, Appellee.
    No. 83-1502.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1983.
   DANAHY, Judge.

Louis L. Snell appeals the trial court’s order which summarily denied his motion for postconviction relief. He urges three grounds for reversal; namely that the sentences imposed were to be served concurrently rather than consecutively, that the sentences imposed are illegal in light of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), and that he was denied effective assistance of counsel.

Snell was originally sentenced in seven consolidated cases in accordance with plea negotiations as follows:

1. Worthless cheek — one year imprisonment in county jail.
2. Worthless check — one year imprisonment in county jail.
3. Three counts of obtaining property by worthless check — Count 1: no sentence; Counts 2 and 3: five years’ probation on each count to run consecutively one with the other and concurrently with number 2 above.
4. Worthless check — five years’ probation to run concurrently with number 3 above.
5. Three counts of obtaining property by worthless check — -five years’ probation on each count to run concurrently, and concurrently with number 3 above.
6. Two counts of obtaining property by worthless check — five years’ probation on each count to run concurrently, and concurrently with number 3 above.
7. One count each of grand larceny in obtaining property by worthless cheek— five years’ probation on each count to run concurrently, and concurrently with number 3 above.

Each probationary period is to begin upon Snell’s release from jail.

Within sixty days after imposition of the above sentences, the trial court, pursuant to Florida Rule of Criminal Procedure 3.800(b), withdrew the sentences only as to numbers 1, 2, and 3 above and resentenced Snell as follows:

1A. Worthless check — one year imprisonment in state prison.
2A. Worthless check — one year imprisonment in state prison concurrent with worthless check. As no case number was cited by the trial court in its order, for purposes of this appeal we will assume the trial court was referring to number 1A above as that was the only sentence for state prison time already imposed at the time of resentencing. Therefore, the sentence in number 2A as corrected is proper. See Newman v. State, 409 So.2d 514 (Fla. 5th DCA 1982).
3A. Three counts of obtaining property by worthless check—Count 1: one year imprisonment in state prison; Counts 2 and 3: five years’ probation to run consecutively one with the other and concurrently, apparently, with number 2A; the entire sentence to run consecutively, again, apparently, with number 2A. At this point in the sentence there is confusion due to several clerical errors which include conflicting directions regarding how Counts 2 and 3 are to be served.

We find no merit in Snell’s first contention that his sentences should be served concurrently. From the record before us, the sentences imposed in numbers 1A, 2A, and 3A were for offenses not charged in the same information. The trial court clearly directed that number 2A was to be served concurrently with number 1A. However, as it was not authorized to direct that a portion of the sentence in number 3A run both consecutively and concurrently to 2A, these directions cannot be allowed to stand. In the absence of court direction, sentences imposed for offenses not charged in the same information must be served consecutively while those imposed for offenses charged in the same information must be served concurrently. § 921.16(1), Fla.Stat. (1981).

Therefore, Snell in his first year would serve his prison time for number 1A and number 2A above. During his second year he would serve his prison time for Count 1 of number 3A and also be on probation for Counts 2 and 3 of number 3A. Upon his release from prison, he would be on probation for the remaining period specified in Counts 2 and 3 of number 3A and also be on probation for numbers 4, 5, 6, and 7 above.

We agree, however, with Snell’s second contention that the “corrective” order which resentenced him violates the requirements of Villery because the period of incarceration followed by probation exceeds one year. Specifically, the one-year imprisonment term followed by a minimum of five years’ probation in number 3A constitutes such a violation.

Finally, we reject Snell’s third contention that he was denied effective assistance of counsel as being clearly without merit. Snell has failed to show that the asserted deficiencies of his defense counsel meet the requirements set forth in Knight v. State, 394 So.2d 997 (Fla.1981).

Snell’s convictions are affirmed. His sentences are vacated and the case is remanded to the trial court for correction of the sentences in accord with Villery. Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

OTT, C.J., and RYDER, J., concur.


author: PER CURIAM.

text:
    George I. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1632.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1983.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised three points in the motion. The second and third points have no merit. However, the allegation in point one, that his lawyer told him that the state would prosecute his wife if he did not plead guilty, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified and attach to its order those portions of the plea hearing transcript which conclusively show appellant voluntarily pled guilty or hold an evidentiary hearing and then rule on the ground alleged in point one of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

Affirmed in part, reversed in part, and remanded with instructions.

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


text:
    Janice MADDOX, Appellant, v. TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, Dr. Mark Goldberg, and Dr. W.F. Lindsey, Appellees.
    No. AP-442.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.
    Paul D. Srygley, Tallahassee, for appellant.
    John D. Buchanan, Jr., Henry, Buchanan, Mick & English, Tallahassee, for appellee Tallahassee Memorial Regional Medical Center.
    David W. Spicer and Charles A. Stampers, McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for appellee W.F. Lindsey, M.D.
    Paula L. Walborsky, Booth, Conner & Solomon, Tallahassee, for appellee Dr. Mark Goldberg.
   PER CURIAM.

Plaintiff-appellant was unable to produce expert medical evidence to support her medical malpractice action, and her belated attempt to secure such evidence after the trial court granted appellees’ motions for summary judgment was denied. We affirm the summary final judgment in appellees’ favor on authority of Sims v. Helms, 345 So.2d 721 (Fla.1977); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980), aff’d 413 So.2d 1 (Fla.1982); Willis v. L.W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla. 2nd DCA 1977). National Properties, Inc. v. Balinger Corporation, 277 So.2d 29 (Fla. 3rd DCA 1973), relied upon by appellant, appears to have no vitality in view of the Florida Supreme Court’s approval of Coff-man, supra. See, Stolzenburg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3rd DCA 1983), agreeing with Coffman that admissibility of an affidavit in opposition to a motion for summary judgment, filed in conjunction with a motion for rehearing, is a matter within the discretion of the trial court.

AFFIRMED.

LARRY G. SMITH, JOANOS and WENTWORTH, JJ., concur.


author: SHIVERS, Judge.

text:
    STATE of Florida, Appellant, v. Chapman Levi CREIGHTON, Appellee.
    No. AQ-287.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   ON MOTION TO DISMISS

SHIVERS, Judge.

Appeal dismissed. Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976); State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983). We certify that the instant decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982).

MILLS and ZEHMER, JJ., concur.


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

text:
    Leon WHITEMAN, Appellant, v. UNITED PARCEL SERVICE and Liberty Mutual Insurance Company, Appellees.
    No. AQ-393.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.

      Daniel J. James of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Walter E. Beisler of Beisler & Wells, West Palm Beach, for appellees.
   ROBERT P. SMITH, Jr., Judge.

As the deputy found, claimant’s December 1981 claim for chapter 440 compensation and medical benefits was barred by the two-year statute of limitations. Section 440.19(2)(a), Florida Statutes (1981), bars claims for compensation for disability unless filed within two years “after the date of the last payment of compensation or after date of the last remedial treatment furnished by the employer.” Section 440.-19(2)(b), Florida Statutes (1981), similarly bars his claim for remedial attention unless filed within two years “after the date of the last payment of compensation or ... after the date of the last remedial attention furnished by the employer.”

Here the deputy found, on substantial competent evidence, that there was no carrier misleading of the claimant such as would estop the carrier from interposing the limitations defense. See Foster Wheeler Energy Group v. Fairhurst, 405 So.2d 438 (Fla. 1st DCA 1981). The only remaining inquiry, then, is whether the date of the “last remedial attention” or the “last remedial treatment” furnished by the carrier was November 20,1979, when claimant was last examined by the authorized physician, or whether the critical date was later, as when in January 1980 the carrier notified claimant that no further treatment would be authorized, or when some months later the carrier paid the physician’s outstanding bill for services last rendered November 20, 1979. Claimant’s claim for additional benefits was filed December 14, 1981.

On this question the statutory language seems clear. The “last remedial attention” or “last remedial treatment” furnished this claimant was furnished in the form of a physician’s examination on November 20, 1979, and the claim filed more than two years later was barred. Refusing claimant further medical attention in January 1980 was not the furnishing of remedial attention or treatment; nor was the later payment, for medical attention previously furnished, a renewed furnishing of attention or treatment.

AFFIRMED.

BOOTH and WIGGINTON, JJ., concur.


text:
    Shelley MILLER, Appellant, v. STATE of Florida, Appellee.
    No. AQ-432.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.

      Rhonda S. Martinec, Panama City, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Miller appeals her conviction and sentence for aggravated battery. Appellant argues that comments made by the prosecuting attorney during closing argument were so prejudicial that reversal is required despite the fact that no objection to these comments was made in the trial court. We affirm.

Miller was accused of shooting James Register at Fisherman’s Bar in Bay County on May 17, 1982. Appellant was charged with aggravated battery and carrying a concealed weapon. The alleged victim, Register, did not appear at the trial. There is no suggestion in the record that Register did not survive the alleged incident. In closing argument, defense counsel made the following statement:

The interesting thing is that Mr. Register is not even here. It makes you wonder what kind of case is involved. Why isn’t —where’s the evidence that would come from him? Do we actually know that he’s been shot? ... We really can’t speculate as to why he’s not here, I’ll leave that to you. But the fact is, and to me it’s a very glaring fact, a very important fact, that he is not here. He did not testify. Maybe he didn’t care, I don’t know.

In rebuttal, the prosecuting attorney made the following statement:

He wants to know where Mr. Register is. Mr. Register isn’t here so it excuses this girl from shooting Mr. Register. That won’t wash. Where was William Carrier when I prosecuted Michael Cannaday for murder? He was in his grave, he wasn’t here. Where was Don Phillips when I prosecuted Johnny Clayton and Wade Sumlin for murder, he was in his grave. And where was Jacquelyn Gurrganus when I prosecuted Larry Gurrganus for killing his wife, she was dead also. There is no visible requirement that the victim of a crime be before you in court.

No objection was made to the comments of the prosecuting attorney. The jury found appellant guilty of aggravated battery and carrying a concealed weapon.

There is no doubt that the prosecutor’s comments regarding prior murder cases were highly improper and raise serious ethical questions. The general rule, however, is that an error based on improper argument to the jury will not be considered by an appellate court unless a timely objection was made in the trial court. Pait v. State, 112 So.2d 380 (Fla.1959). An exception to this rule exists when an improper remark is so prejudicial to the rights of an accused that neither rebuke nor retraction could eradicate its evil influence. Id. In the instant case, it is possible that the trial court could have stricken the prosecutor’s remarks, upon appropriate motion, and could have given curative instructions which might have eliminated any prejudice to appellant. Although we in no way condone the conduct of the prosecuting attorney in making these improper remarks, we find that this case falls under the general rule.

Appellant’s other contentions are without merit.

AFFIRMED.

MILLS and ZEHMER, JJ., concur.

      . We note that the prosecuting attorney here was invited to comment upon the absence of Mr. Register by the argument of defense counsel. In Pait the court stated, “It should be noted that the remarks of the prosecutor were not provoked by irritations or proddings by the defense counsel.” 112 So.2d at 385. Appellant cannot be heard to complain about prosecutorial argument which is invited. See Lynn v. State, 395 So.2d 621 (Fla. 1st DCA), rev. denied, 402 So.2d 611 (Fla.1981); Dixon v. State, 206 So.2d 55 (Fla. 4th DCA 1968). We do not think, however, that defense counsel’s invitation in the instant case extended to analogizing Mr. Register with murder victims.


text:
    T. Sol JOHNSON, Appellant, v. TRAVELERS INDEMNITY COMPANY and Steven Tracy Williams, Appellees.
    No. AR-315.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.
    Dennis K. Larry of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellant.
    Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellee Travelers Indem. Co.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola and Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for appellee Steven Tracy Williams.
   PER CURIAM.

Johnson appeals a final summary judgment finding no coverage by Travelers for a 1980 Camaro automobile under a commercial automobile insurance policy issued to Johnson’s law firm. We affirm.

Johnson argues that there was an oral contract which extended the same coverage under the commercial policy as he previously had under a family policy issued by Travelers and also argues that the Camaro was covered even though it was not listed on the policy’s declaration sheet.

In its summary judgment, the trial court specifically stated that even assuming Johnson had the family policy coverage, he had failed to notify Travelers within the prescribed thirty days that he had acquired the car.

The thirty-day notice requirement was not tied to premium notices as it was in Beasley v. Wolf, 151 So.2d 679 (Fla. 3d DCA 1963), where the link created an ambiguity precluding summary judgment. Here, the language of the thirty-day notice requirement is clear and unambiguous. The commercial policy did not list the Camaro as an insured vehicle, nor did Johnson notify Travelers of the acquisition of the car within thirty days of his acquiring it. Therefore, the Camaro was not covered by the commercial policy, even assuming the same family policy coverage had been extended. Lowe v. State Farm Mutual Automobile Insurance Company, 420 So.2d 318 (Fla. 5th DCA 1982).

The final summary judgment is AFFIRMED.

LARRY G. SMITH, WENTWORTH and JOANOS, JJ., concur.


text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Mack ROPER, Appellee.
    No. 81-2208.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley and George W. Chesrow, Miami, for appellant.
    Adams, Ward, Hunter, Angones & Adams, Horton, Perse & Ginsberg and Arnold Ginsberg, Miami, for appellee.

      Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from a final judgment for the plaintiff entered upon a jury verdict in an action for malicious prosecution and intentional interference with a business relationship. We reverse the final judgment as to the malicious prosecution claim with directions to enter judgment for the defendant, as the claim herein is barred by res judicata. We reverse the final judgment as to the intentional interference with a business relationship claim and remand for a new trial based on an erroneous admission at trial of certain polygraph test evidence.

I

The plaintiff Mack Roper operated, through a defunct corporation, a janitorial service business in Dade County, Florida. He had a contract with the defendant Southern Bell Telephone & Telegraph Company to maintain two of Southern Bell’s buildings in downtown Miami; Domingo Echemendia was employed by the plaintiff Roper to supervise the maintenance of these two buildings. In the course of his duties, Echemendia reported to Southern Bell security representatives that a Southern Bell employee was stealing Bell system floor finish and selling it to the plaintiff Roper. An investigation by the defendant Southern Bell ensued, during the course of which several of the plaintiff Roper’s business clients were contacted by Southern Bell representatives. It is claimed that Southern Bell security representatives accused the plaintiff Roper of stealing Bell system floor finish, resulting in an asserted loss of business. This investigation also led to the filing of an information by the State Attorney for the Eleventh Judicial Circuit of Florida charging plaintiff Roper with theft of the subject floor finish. On May 19,1976, Roper was tried on this charge and acquitted by a jury in the Circuit Court for the Eleventh Judicial Circuit of Florida.

The plaintiff Roper thereupon brought suit in the court below in November 1976 against the defendant Southern Bell for malicious prosecution. (“Roper I”). On May 24, 1977, the trial court entered a summary judgment for the defendant Southern Bell on the ground that the filing of the information in this case by the state attorney conclusively determined that there was probable cause to prosecute the plaintiff Roper, thereby barring the malicious prosecution action, based on the controlling authority of McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d DCA 1977). No appeal was taken from this final judgment by the plaintiff Roper. Subsequently the Florida Supreme Court disapproved the McKinney decision and held that the filing of an information by a state attorney is not a conclusive finding of probable cause in the case and does not constitute an absolute bar to a malicious prosecution action. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

On October 17, 1977, the plaintiff Roper filed a second lawsuit (“Roper II”) in the court below against the defendant Southern Bell. This complaint, as subsequently amended, asserted causes of action for malicious prosecution, intentional interference with a business relationship, slander and conspiracy. The defendant Southern Bell filed an answer and subsequently moved for summary judgment inter alia as to the malicious prosecution claim based on res judi-cata grounds. Southern Bell contended that the malicious prosecution claim was, in essence, the same claim which had been brought and adjudicated in Southern Bell’s favor in “Roper I.” The trial court denied the motion for summary judgment.

After considerable procedural skirmishing, the case ultimately came to trial below. During the course of the trial, the plaintiff Roper called as a witness the assistant state attorney who had prosecuted the criminal case against the plaintiff Roper. Over timely defense objection, the assistant state attorney testified that he became suspicious of the credibility of the state’s chief witness in the case [Domingo Echemendia], that he [the assistant state attorney] arranged for a polygraph examination of this witness by a respected private polygraph examiner in Miami, that the results of that examination were made known to him [the assistant state attorney] and to Southern Bell representatives, and that he [the assistant state attorney] subsequently recommended that the criminal charges against the plaintiff Roper be dropped but Southern Bell representatives refused to agree. The trial court denied a timely motion for mistrial based on this testimony.

The trial court at the close of all the evidence directed a verdict in Southern Bell’s favor on the slander and conspiracy counts. The case was then submitted to the jury on the malicious prosecution and intentional interference with a business relationship counts. The jury found for the plaintiff Roper on both counts and awarded the following damages: (1) malicious prosecution count, $200,000 compensatory damages and $100,000 punitive damages; (2) interference with business relationship count, $280,000 compensatory damages and $50,-000 punitive damages. The defendant Southern Bell appeals.

II

The defendant Southern Bell raises numerous points on appeal which we have carefully and painstakingly reviewed. We find merit in two of these points, but reject the balance as being insufficient under the law to upset the judgment appealed from.

First, we have no problem in concluding that the malicious prosecution claim below was, as urged, barred by res judicata. Without doubt, this same claim, in essence, was sued upon in the prior “Roper I” suit resulting in a summary judgment in Southern Bell’s favor and from which no appeal was taken. The fact that the legal authority relied on by the trial court for the summary judgment in “Roper I” was subsequently disapproved by the Florida Supreme Court cannot change this result. Plymouth Citrus Products Co-Op v. Williamson, 71 So.2d 162 (Fla.1954). Moreover, we are unpersuaded by the plaintiff Roper’s argument that the documentary evidence adduced below did not establish a res judi-cata defense or that the causes of action here were not in substance the same. The trial court, then, committed reversible error in denying Southern Bell’s motion for summary judgment as to the malicious prosecution count.

Second, we have no problem in reversing for a new trial on the remaining interference with a business relationship count. Plainly, evidence of a polygraph examination and, indirectly, the results thereof were placed before the jury for the purpose of showing that the defendant Southern Bell informed business customers of the plaintiff Roper as to theft allegations against Roper and continued the criminal prosecution against Roper, although it well knew that the chief witness in its investigation had, in effect, failed a polygraph examination. True, the precise results of the polygraph examination were not directly placed in evidence; nonetheless, it was obvious, given the context of the testimony below, that the chief witness herein had failed the polygraph test which was administered to him. The assistant state attorney testified, in effect, that after receipt of the polygraph test results, he recommended that the criminal charges against the plaintiff Roper be dropped, but Southern Bell representatives refused to agree. Such evidence was, without doubt, inadmissible at trial and devastatingly prejudicial to the defendant Southern Bell in this case. We have no alternative, under the established law, but to reverse and remand for a new trial based on this prejudicial error. Kaminski v. State, 63 So.2d 339 (Fla.1953), cert. denied, 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980); Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975); see Farmer v. City of Fort Lauderdale, 427 So.2d 187 (Fla.1983).

The final judgment under review is reversed and the cause is remanded to the trial court with directions: (1) to enter a final summary judgment for the defendant Southern Bell Telephone & Telegraph Company as to the malicious prosecution count herein, and (2) to order a new trial as to the interference with a business relationship count.

Reversed and remanded.


text:
    Darryl MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2591.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Davis v. State, 308 So.2d 27 (Fla.1975).


author: BARKDULL, Judge.

text:
    Michael Gregory FELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-160.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender and Larry Barocas, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   BARKDULL, Judge.

After a jury trial in which he represented himself the appellant was convicted, sentenced to 60 years and given a mandatory minimum of 3 years. The court also retained jurisdiction over the first one-third of his sentence and ordered him to make restitution of $5,000. We reverse. Rule 3.111(d)(5) Florida Rules of Criminal Procedure reads as follows:

(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

The trial court at arraignment interrogated the defendant and apprised him of certain matters pertaining to the risk in representing himself and that the state would supply him with counsel if he could not afford it, but it did not apprise him of the fact that he was facing a potential minimum mandatory sentence or that the trial court might retain jurisdiction over one-third of any sentence it might impose. Notwithstanding the provisions of the rule, at the time of trial no interrogation was made on the waiver of counsel; however, at the time of sentencing counsel was reof-fered and refused.

We find error in the trial court’s failure to make proper inquiry at the time of trial and therefore will remand this case for a new trial. Carter v. State, 408 So.2d 766 (Fla. 5th DCA 1982); Machwart v. State, 222 So.2d 38 (Fla. 2d DCA 1969); Accord R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981). Although not necessary to this decision we have serious doubt that the waiver in the first instance was knowingly made when the trial court failed to apprise the defendant of the potential sentences if he was convicted. See and Compare: Watts v. State, 434 So.2d 23 (Fla. 3d DCA 1983); Green v. State, 406 So.2d 1148 (Fla. 1st DCA 1981); Polk v. State, 405 So.2d 758 (Fla.App.1981).

Reversed and remanded with directions.

      . We take judicial notice that most defendants that represent themselves are found guilty.


text:
    Ervin Durante LIGHTSEY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-614.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender,, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of burglary of a conveyance, aggravated assault, kidnapping, robbery and sexual battery.

He was sentenced to a term of fifteen (15) years on the aggravated assault charge, the sentence to run concurrently with the fifteen (15) year sentences imposed as to the other convictions.

We have carefully considered the record, briefs and argument of counsel and have concluded the judgment and sentences should be affirmed in all respects except for the fifteen year sentence imposed upon the aggravated assault conviction. Section 784.021, Florida Statutes (1979) provides that aggravated assault is a third degree felony which is punishable by a maximum sentence of five (5) years imprisonment. Therefore the sentence as to the aggravated assault conviction is reduced from a term of fifteen (15) to a term of five (5) years.

No other error having been demonstrated, the judgment and sentences are affirmed as amended.

Affirmed as amended.


text:
    Antonio OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1842.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender, and Linda L. Carroll, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The defendant’s convictions are affirmed. See Tejeda-Bermudez v. State, 427 So.2d 1096 (Fla. 3d DCA 1983); State v. Hudson, 397 So.2d 426 (Fla. 2d DCA 1981); McKnight v. State, 319 So.2d 647 (Fla.3d DCA 1975).

The state has conceded to an error in the sentencing documents which resulted in a minimum mandatory three-year sentence for the conviction of rape without use or threatened use of a firearm. We therefore reverse that portion of the sentence and remand to the trial court with directions to correct the sentencing error.

Affirmed in part, reversed in part and remanded with directions.


text:
    Orestes Morales DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2171.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender and Mel Black, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. McCray v. State, 416 So.2d 804 (Fla.1982); Menendez v. State, 368 So.2d 1278 (Fla.1979); Parker v. State, 421 So.2d 712 (Fla. 3d DCA 1982); Rule 3.150(a), Fla.R.Crim.P.


text:
    Albert HAJDUCKO and Marie Hajducko, Appellants, v. HEIDELBERG-EASTERN, INC., and Polar Mohr, Appellees.
    No. 82-2636.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Schwartz, Klein, Steinhardt, Weiss & Weinstein and Norman S. Klein, Miami, for appellants.
    Richard A. Sherman, Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Conrad, Scherer & James and Joseph S. Kashi, Fort Lauderdale, for appel-lees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

We have carefully examined each of the points raised by the appellants and conclude that harmful error has not been demonstrated. See Atlantic Coast Line R. Co. v. Ganey, 125 So.2d 576 (Fla. 3d DCA 1960); Crews v. Warren, 157 So.2d 553 (Fla. 1st DCA 1963); Eckert v. Government Employees Ins. Co., 334 So.2d 119 (Fla. 3d DCA 1976); Bailey v. Deverick, 142 So.2d 775 (Fla. 2d DCA 1962); Sec. 59.041, Fla.Stat. (1981).

Affirmed.


text:
    SUN BANK OF MIAMI, Appellant, v. Esther N. VILLALON, Appellee.
    No. 83-177.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Rodger Traynor, Jr., Miami, for appellant.
    Ira B. Price and Judith Thomas, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See: United Service Corporation v. Vi An Construction Corp., 77 So.2d 800 (Fla.1955); Lehman v. Goldin, 160 Fla. 710, 36 So.2d 259 (1948); Moore v. Hunter, 153 Fla. 158, 13 So.2d 909 (1943); Meola v. Sparks, 138 Fla. 364, 189 So. 408 (1939); Welch v. Point of Americas Condominium Apartments, Inc., 373 So.2d 60 (Fla. 4th DCA 1979); Continental Development Corporation of Florida v. Duval Title and Abstract Co., 356 So.2d 925 (Fla. 2d DCA 1978); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976); DeCamp v. Allen, 156 So.2d 661 (Fla. 1st DCA 1963); Compare: Bauer v. Kaplan, 233 So.2d 430 (Fla. 3d DCA 1970).


text:
    Paul BAUM and Rachel Baum, his wife, Appellants, v. Yossi YATIV, Lillian Yativ and Highlands Insurance Company, a foreign corporation, Appellees.
    No. 83-481.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Michael Weisberg, Miami, for appellants.
    Joe N. Unger, Welsh & Telander, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. McCarty v. Dade Division of American Hospital Supply, 360 So.2d 436 (Fla. 3d DCA 1978); Somers v. Meyers, 171 So.2d 598 (Fla. 1st DCA 1965), cert. denied, 177 So.2d 483 (Fla.1965).


text:
    Vincent A. CRUDELE, Appellant, v. Don M. WATERS, Appellee.
    No. 83-809.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 15,1983.
    Payton & Rachlin, P.A., and Harry A. Payton, Miami, for appellant.
    Krongold & Bass, P.A., and Paul H. Bass, Coral Gables, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The appellee has confessed error. Accordingly, the trial court’s final judgment of rescission in favor of the plaintiff is reversed and this cause is remanded to the trial court for further proceedings.

Reversed and remanded.


author: GLICKSTEIN, Judge.

text:
    Muriel PLEVY, Appellant, v. Donald J. PLEVY, Appellee.
    No. 83-1276.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.

      Cynthia L. Greene of law offices of Mel-vyn B. Frumkes, P.A., Miami, for appellant.
    Wayne Carson of Bernstein, Bernstein, Stein & Berk, Fort Lauderdale, for appel-lee.
   GLICKSTEIN, Judge.

This is an appeal from an order, which denied the former wife’s motion for protective order. We have elected to treat the matter as a petition for writ of certiorari; and we grant the relief sought herein.

The issue is whether a subpoena duces tecum for deposition and notice of taking deposition should be quashed when served by a former husband upon a former wife without there being any petition for modification or other relief pending before the court. We conclude both should have been quashed.

The question of the propriety of permitting discovery in the absence of a pending issue between parties really addresses jurisdiction of subject matter. A line of cases in this and other Florida courts hold that a trial court lacks jurisdiction to modify a final divorce judgment absent a new pleading. See e.g., Parmer v. Parmer, 431 So.2d 257 (Fla. 2d DCA 1983); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Purvis v. Carver, 303 So.2d 681 (Fla. 4th DCA 1974). If the trial court lacked jurisdiction to modify a judgment, it follows that it lacked jurisdiction to enter a discovery order relating to modification.

In McCarty v. Estate of Schultz, 372 So.2d 210 (Fla. 3d DCA 1979), the court reversed a denial of- a motion to quash a subpoena duces tecum where the petitioner was not involved in an adversary action with respondent. The court said:

The instant subpoena duces tecum may not be used for a mere “fishing expedition” or general inquisitorial examination of the papers with a view to ascertaining whether something of value may or may not show up. See Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970); Travelers Indem. Co. v. Salido, 354 So.2d 963 (Fla. 3d DCA 1978).

Id. at 212.

Federal decisions involving rules similar to Florida’s point to the same conclusion. In re The Royal Bank of Canada, 33 F.R.D. 296 (S.D.N.Y.1963) involved a motion to quash a subpoena duces tecum served on a witness in an action where no defendants had been served with process. The court declined to allow use of court processes to determine whether there would be justification for suit. 33 F.R.D. at 303. Similarly, the opinion in American Communications Association, Local 10 v. Retirement Plan for Employees of RCA Corporation and Subsidiary Companies, 488 F.Supp. 479 (S.D.N.Y.1980), rejected an effort to fill in pleading specifics through use of discovery. The federal court noted that “[t]he discovery rules are designed to support a properly pleaded cause of action and to prepare defenses to charges made — -not to discover whether a claim exists.” 33 F.R.D. at 484.

On point is the Utah decision, Mattingly v. Mattingly, 562 P.2d 1254 (Utah 1977). Mattingly arose when a state agency tried to depose a former husband some time after the rendition of a final judgment, and without filing a petition. The court observed that the judgment was final until changed circumstances are shown, and held:

Only after a new action or proceeding is commenced may depositions of a party be taken. This restriction is necessary to protect parties from possible abuses of harassment and over-reaching, and it puts them on notice as to the specific scope of inquiry sought. Once the court becomes involved in the action or order, either party may take depositions from any person pursuant to our rules of civil procedure; but until that occurs, depositions, except as set forth in Rule 27, Utah Rules of Civil Procedure, may not be taken.

(Footnote omitted.) 562 P.2d at 1255. Utah Rule of Civil Procedure 27 echoes Florida Rule of Civil Procedure 1.290, Depositions before Action or Pending Appeal. The gist of each is preservation of evidence that might otherwise be lost because of the litigant’s current inability to sue. These circumstances do not exist in the instant situation; and even if they did, this procedure is not the one appealed.

Accordingly, we grant the petition.

DOWNEY and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    Donald L. BURLEY, Appellant, v. Margaret J. BURLEY, Appellee.
    No. 83-1196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Roger W. LaJoie of Sullivan & LaJoie, Yero Beach, for appellant.
    No appellee’s brief filed.
   HERSEY, Judge.

The father appeals from a non-final order denying his petition for modification of child custody. We reverse.

Custody and child support issues related to a dissolution proceeding between the present parties were resolved by an agreement, later incorporated in a supplemental final judgment, which provided, inter alia, that each of the minor children “shall, at all times, have the right to select the parent with whom said child desires to reside.” Exercising this right, one or more of the children effected changes in residence which, in turn, affected custody and support. As a result of these changes the father petitioned unsuccessfully for modification, resulting in these appellate proceedings.

The rules which govern the issues thus presented are elementary and straightforward. See Elkins v. Vanden, 433 So.2d 1251 (Fla. 3d DCA 1983). One who seeks a change in the custody of minor children shoulders a heavy burden. First he must overcome the res judicata effect of the existing order determining custody by showing a material change in circumstances and then he must show that the welfare of the minor child would be best served by the proposed change. In passing, we note for the guidance of the parties, their counsel and the trial court that a change in preference by one or more of the minor children as to which parent shall have custody is insufficient, standing alone, either to constitute a sufficient change of circumstances or to support a determination that a change is in the best interest of the child. It may be considered on both issues, however, and shall be given such weight as the trial court determines appropriate.

The point here is that no evidentiary hearing took place and thus no basis has been established for a finding on the issue of change of circumstances or the issue of the best interests of the child. We reverse and remand with instructions to the court to provide an opportunity for such a hearing upon motion by either party. The order appealed is reversed.

REVERSED and REMANDED with INSTRUCTIONS.

BERANEK and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Leon Eugene ALLEN, Jr., Appellee.
    No. 83-202.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Charles G. Brackins of Law Office of Meldon & Brackins, Gainesville, for appel-lee.
   PER CURIAM.

Affirmed on the authority of Florida Rule of Criminal Procedure 3.191(a), as interpreted by State v. Widmer, 427 So.2d 1041 (Fla. 1st DCA 1983); Walker v. State, 390 So.2d 411 (Fla. 4th DCA 1980).

LETTS, GLICKSTEIN and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Edward MORRISON, Appellee.
    No. 83-158.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Christopher W. Boyden of Boyden & Laufer, North Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982).

LETTS, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Michael DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. 83-22.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Richard L. Jorandby, Public Defender, and Glenalee Kretschmer, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of robbery with a firearm. However, based on Bell v. State, 437 So.2d 1057 (1983) affirming in part and reversing in part, 411 So.2d 319 (Fla. 5th DCA 1982), we reverse the conviction of possession of a firearm while engaged in a criminal offense.

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


text:
    Edward A. McCARTHY, as Archbishop of Archdiocese of Miami (“McCarthy”), Appellant, v. UP-RIGHT, INC., et al., Appellees. UP-RIGHT, INC., Appellant, v. Walter BATTAGLIA, Edward A. McCarthy, etc., et al., Appellees.
    Nos. 82-2518, 83-131.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    James E. McDonald and Steven E. Siff of McDermott, Will & Emery, Miami, for Edward A. McCarthy.
    Scott R. Anselmo and E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Laud-erdale, for Up-Right, Inc.
   PER CURIAM.

We affirm the trial court’s order dismissing Edward A. McCarthy’s third party complaint for indemnity but reverse the trial court’s entry of final summary judgment on McCarthy’s claim for contribution and remand this cause for further proceedings on the contribution claim.

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


text:
    Anne BOWEN, Petitioner, v. BROWARD COUNTY, a political subdivision of the State of Florida, Respondent.
    No. 82-2423.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Dan Cytryn of Law Offices Dan Cytryn, Lauderhill, for petitioner.
    Harry A. Stewart, Gen. Counsel, and Noel M. Pfeffer, Asst. Gen. Counsel, Fort Lauderdale, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the trial court’s order of October 21, 1982. The trial court applied the incorrect rule of law and standard of review to the administrative order being considered. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). We direct the trial court to reconsider this matter, to determine the appropriate sections of the Civil Service Rules and Regulations that the petitioner is alleged to have violated, and further to determine whether the administrative tribunal correctly exercised its authority in light of those Rules and Regulations.

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


text:
    Archibald J. RYAN, Jr., and Karen E. Ryan, his wife, Appellants, v. BROWARD COUNTY, a political subdivision of the State of Florida; Bank of Hallandale and Trust Company, et al., Appellees.
    No. 82-2294.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    ' A.J. Ryan, Jr., Law Offices of A.J. Ryan, Jr., Dania, for appellants.
    Harry A. Stewart, Gen. Counsel, and James W. Shindell, Asst. Gen. Counsel, Fort Lauderdale, for appellee, Broward County.
   PER CURIAM.

AFFIRMED. See Rochelle v. State Road Department, 196 So.2d 477 (Fla. 2d DCA 1967).

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    Rickie A. OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2254.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.

      Richard L. Jorandby, Public Defender, and Glinalee Kretschmer, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Grace M. Gonzalez and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant was charged with aggravated assault with a knife. After a jury trial, he was found guilty of simple assault and sentenced to sixty days in jail. On appeal, he contends that the court erred in rejecting a requested jury instruction on self defense without deadly force. We affirm and conclude that error did not occur. The defendant’s rejected jury instruction did not contain a correct statement of the law.

AFFIRMED.

ANSTEAD, C.J., and BERANEK, J., concur.

HURLEY, J., dissents without opinion.


author: DOWNEY, Judge.

text:
    EXXON CORPORATION, Cross Appellant, v. Gordon WARD, Cross Appellee.
    No. 82-1920.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Hywel Leonard and Suzanne R. Armstrong of Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Tampa, for cross appellant.
    George A. Williamson, Fort Lauderdale, for cross appellee.
   DOWNEY, Judge.

Appellant, Exxon Corporation, sued ap-pellee, Gordon Ward, in a three count complaint, Counts I and II for breach of contract and Count III for conversion. The trial court granted a summary judgment for Exxon on each count including prejudgment intérest on Counts I and II, but denied such interest on Count III. Ward appealed from the judgment and Exxon cross appealed the denial of interest on Count III. Ward’s appeal was dismissed for failure to file an appellant’s brief.

We reverse the denial of prejudgment interest on Count III because Exxon was entitled to recover the reasonable value of the property converted, together with interest to the date of judgment. As the court said in Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976):

It is well settled in Florida and other jurisdictions that the measure of damages in an action for conversion is the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict. — 336 So.2d at 1227.

See also: Page v. Matthews, 386 So.2d 815 (Fla. 5th DCA 1980); 12 Fla.Jur.2d, Conversion and Replevin, § 20.

The cause is remanded with directions to enter judgment for Exxon for prejudgment interest on Count III from July 1, 1979, at 6% per annum, which amounts to $1641.41. In all other respects the judgment appealed from is affirmed.

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


text:
    Berry NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1045.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The jury found the defendant guilty of murder in the first degree, and the state waived the death penalty, whereupon the defendant was sentenced to life imprisonment with a 25-year minimum. The defendant raises a number of grounds for reversal. One of them, in our opinion, warrants such action; namely, the trial court’s instruction to the jury. Accordingly, we reverse and remand, finding the instruction to be coercive in effect.

The jury commenced deliberations before lunch on May 3, 1982. At 4:25 p.m., they sent out a note, ultimately the first of three, and asked for a clearer definition of premeditation. The trial court referred them to its previously given instruction. The second question, tendered at 11:00 a.m. the following morning, requested a dictionary if such were permitted. The court told them to rely on the instructions already given and on common sense, and asked if there was a word holding them up. A juror replied that there were two words. The judge again told them to rely on common sense and asked if the jury was still making progress. The juror said yes, to an extent.

The third note, tendered at 3:00 p.m. on May 4,1982, indicated the jury had been at impasse for about twelve hours, and suggested that further deliberation would be fruitless. The trial court gave an Allen charge, amplified by certain language of its own. The court prefaced the standard deadlock charge with the following:

I received your note which has already been read into the record. I want to give you some instructions. I don’t think that anybody here would be served by you all not arriving at a verdict. It would be wasting your time for whatever period of time which I guess is I guess seven days now. Nobody can repeat this testimony and exhibits placed before you. If you all cannot arrive at a verdict, then something is wrong. I am giving you an instruction at this time.

The court also appended the following to the standard charge:

I do want you to understand though that a lot of differences that might exist may be for reasons of your own without there being reasons of either law or evidence to support your own conclusions. That is the reason you are taking this position to go back into that jury room and tell the other jurors about the weaknesses of your own position because it is by your works and your unanimity....

A juror informed the trial court that there was a- question about the definitions of “premeditation” and “reflection,” two words in the charge of murder in the first degree. The trial court said it was for the jury to interpret whether there was reflection, and that if there was doubt, “you must find for the Defendant.” It further said what was being raised was a question of fact, not of law. The jury then returned to its deliberations.

After a short while the trial judge called the jury in and said he would send them home for the night. His remarks are as follows:

THE COURT: I remember a man once who announced his position very clearly. He announced it so loud and strong and clear that later he was afraid to refute it. That is probably not poetic, but it may fit in somewhere.
I will do you this favor. I am going to send you home tonight at this time because I know you have struggled long and hard.
I am going to ask you to come back tomorrow at 8:30. I read you a charge that I thought pretty well hit everything on the head. I ad-libbed a little whereby I thought it even hit more on the head. Anything that you have a question in your mind about that particular evening has not been proven beyond a reasonable doubt if you had that doubt about it. However, please stop and think about your position. Stop and think about your fellow man’s and woman’s position. Sleep on it tonight and come back tomorrow.
You just don’t understand what happens if we had to retry this case. It is not just reproducing the witnesses here from Alabama or wherever but it is going through this whole reppertoire [sic] again for you or for someone else when it is really not necessary. You have heard all of the law. That is all the evidence there is. That is it as far as what was presented here before you.
We look to you for the resolution of this case. It is that pure and simple.
You all were selected because we thought, and the attorneys thought, that you could approach this in a commonsense manner.
So, I am going to ask that you go home and we will see you at 8:30 in the morning. I am going to ask that you not discuss it with anybody nor to probe it in your minds until we see you then at 8:30. Come right into the courtroom. I will have to do some shuffling tomorrow. I just don’t want to let it go unless it is impossible. I can’t see that it would be impossible when we have just such a fine jury here.
We will see you at 8:30 in the morning. Thank you.

At that point a juror again raised the question of the definitions of the two words, which he said was the source of the impasse on the jury. The trial court reread the standard instructions which indicate that there is no fixed amount of time required for premeditation, and that whether there was premeditation is a question of fact. The trial court asked whether it was the last sentence of the standard instruction that caused the problem. The following dialogue ensued:

JUROR: It is the definition of reflection and the definition of premeditation. Is it instantaneous, is it a matter of moments or minutes?
THE COURT: Or seconds. Reflection means it is a conscious act. To reflect is to think.
A THIRD JUROR: It is a moment in a time frame that would be a matter of seconds for premeditation and for reflection.
THE SECOND JUROR: Then, let’s go.
.THE COURT: This is something that you must find from the facts of the case itself and the question of premeditation is a question of fact determined by you from the evidence. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. To determine whether or not it is reflection is the question.
JUROR: Premeditation means—
THE COURT: It means before. To think. To have thought before. A before thought.
JUROR: Can we have a few minutes?
THE COURT: Do you think you might not rather go home?
JUROR: We may be able to reach a decision in the next little bit if you want to give us ten minutes.
THE COURT: All right, sir.

When the jury returned to the jury room to resume deliberations, appellant’s counsel moved for a mistrial. In a matter of four minutes, the jury reported it had reached its verdict of guilty of first degree murder.

The tendency of the trial court’s language during the late afternoon of May 4, 1982, as distinguished from the language of the standard deadlock charge, was to lead the jury to believe that they were required to reach a verdict. In Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), this court reversed a felony conviction where the trial court during voir dire conveyed the impression that the jury must reach a verdict. A defendant has a right to a hung jury; and “[njothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lee v. State, 239 So.2d 136, 139 (Fla. 1st DCA 1970). See also State v. Bryan, 290 So.2d 482 (Fla.1974); Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975).

Florida’s current standard deadlock charge avoids the pitfalls of the traditional Allen charge, which tended to convey to the minority on a jury that they should accede to the will of the majority. It implied that there was more common sense, as it were, in a point of view shared by seven than in one shared by only five. See United States v. Fioravanti, 412 F.2d 407, 414-20 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). The added remarks of the trial court in the instant case applied much the same kind of pressure the recast standard deadlock charge sought to eliminate. It is the genius of our jury system that twelve impartial persons, individually, applying a subjective standard, come to a common conclusion of defendant’s guilt beyond a reasonable doubt. This fundamental principle becomes subverted if a jury member is pressured to defer to the opinion of his peers, for unanimity is made a sham thereby. An objective standard is in effect substituted for the subjective, by virtue of the implication that the majority opinion is reasonable, and the minority, unreasonable.

Here the trial court may have led one or more jurors to capitulate, against his or her conscientious judgment, because the court made it appear that unless a verdict was reached great waste would occur and the court’s confidence in the jury’s common sense would somehow have been betrayed.

Having said all of the above, we wish to add that we are not attempting to be Olympian in our pronouncements; and that we are fully aware of this trial judge’s conscientious performance of duties. The late afternoon has a way of taking its toll in the trial court after hours of diligent concentration and application to one’s duties as a trial judge — just as it affects lawyers equally diligent. We cannot overlook the error that occurred here but are ever mindful of the hours of error-free performance that preceded the unfortunate occurrence and wanted this, and all other trial judges, to know of our empathy.

DOWNEY and LETTS, JJ., concur.


author: BERANEK, Judge.

text:
    Samuel I. ADLER, John R. Frankenfield, Charles Donner, Howard Mescon, Al Ketchum, J & R Forming Co., and Versatile Construction Systems, Inc., a Florida corporation, Appellants, v. SELIGMAN OF FLORIDA, INC., Fidelity and Deposit Company of Maryland, and J & R Crane Service, et al., Appellees.
    No. 81-1897.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.

      Sam Daniels of Daniels & Hicks, Miami, and Marc Cooper of Greene & Cooper, P.A., Miami, for appellants.
    Daniel Neal Heller of Heller & Kaplan, Miami, for appellee, Seligman of Florida, Inc.
    Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for amicus curiae.
   BERANEK, Judge.

This is an appeal from a final judgment finding a breach of a fiduciary duty and awarding Seligman of Florida, Inc., $615,-564.65 in compensatory damages, $204,-401.19 in prejudgment interest, and $1,310,-000.00 in punitive damages. These damages were awarded against Samuel Adler, John Frankenfield, Charles Donner, Howard Mescon, Al Ketchum, J & R Forming Company, and Versatile Construction Systems, Inc., who now appeal asserting numerous errors. The action was originally filed as a mechanic’s lien foreclosure in 1974 by one of the subcontractors on a condominium construction project. Seligman of Florida, Inc., the builder, counterclaimed asserting conspiracy and breach of fiduciary duty against various individuals and corporate counterdefendants, all of whom had been involved in the project. Damages for defective construction were also sought. A non-jury trial was concluded on April 27, 1976, after which both sides submitted proposed findings of facts and conclusions of law. At some time thereafter, the court advised counsel of its intention to rule in favor of the counter-plaintiff, Seligman of Florida, Inc. This advice apparently occurred at an informal conference. The matter was then taken under advisement. In October, 1979, the counter-defendant made a motion for a new trial stating that the court could not rule on the matter which had then been under advisement for three and one-half years. The motion for new trial asserted that the delay was simply too long. In December, 1979, the court entered an order denying the motion for new trial and therein stated it intended to rule and render a judgment at the first possible moment. More than a year later, after four and one-half years, the trial court issued a final judgment dated January 6,1981. The last brief was filed before this court on February 4, 1983, and oral argument occurred on May 17, 1983. We reverse in part and remand for further proceedings.

We start by condemning the four and one-half year delay but caution that we do not reverse on this basis. However, in view of this delay, we will dispose of this matter without extended discussion.

The facts as found in the final judgment are briefly as follows. Seligman, president of various real estate development companies, and Adler, also a builder, entered into a joint venture to plan, build, and sell a 531 unit condominium project. Seligman was to provide the land and money and Adler was responsible for the actual construction. Adler involved various corporations and individuals in the project, all of whom eon-spired to siphon off the profits which should have belonged to Seligman or the joint venture. The devious nature of the conspiracy was far reaching and much of the construction actually performed was defective. Although the joint venture was formally terminated before substantial construction occurred, the conspiracy was conceived during its existence. The project was initially planned using ground level cast-in-place concrete floors over pads and upper level prestressed concrete floors. Adler changed from this initial plan to a flying form system with a flat plate design and did so in bad faith and without consultation with Seligman. The flat plate flying form system was more expensive than the initial plan. The change in plans was done so Versatile could successfully bid the job and siphon off the profits. Adler failed to disclose his own personal ownership interest in Versatile Construction System, Inc., the corporation subcontractor involved in the flying form system. This system of construction was used solely for the benefit of Adler and the others who conspired against Seligman. All of the actions of the various counterdefendants constituted a conspiracy to the detriment of Seligman. Adler breached his fiduciary duty to Seligman.

There are eleven points on appeal.

POINT I.

WHETHER THE $217,000 AWARD FOR INCREASED CONSTRUCTION COST IS BASED ON SUBSTANTIAL COMPETENT EVIDENCE.

The trial court awarded over $217,-000 as the increased cost of using the flying form system as opposed to the less expensive system on which the project was initially designed. We find the evidence as to Seligman’s actual costs of construction to have been lacking and thus reverse this award. The Seligman company actually constructed the building after the termination of the joint venture and did so using the flying form system. The evidence presented in support of this element of damage was merely an estimate rather than the actual cost figure. We reverse on the authority of Safe-T-Lawn, Inc. v. Agricultural Engineering Association, 235 So.2d 25 (Fla. 3d DCA 1970).

POINTS II AND III.

WHETHER THE $247,000 AWARD FOR “STEP-DOWN” CONSTRUCTION IN THE INDIVIDUAL UNITS IS PROPER WHEN MOST OF THE UNITS HAD ALREADY BEEN SOLD.

WHETHER THE $59,000 AWARD FOR RECONSTRUCTION OF ALL THE STAIRWELLS IS PROPER WHEN (1) MOST OF THE UNITS HAD BEEN SOLD AND (2) THERE WAS NO PROOF THAT ALL THE STAIRWELLS WERE DEFECTIVE.

The trial court awarded Seligman damages for defendants’ failure to build each unit with a “step-down.” One hundred thirty units were completed. Selig-man owned only 46 of these units, having sold the balance prior to trial. There was no showing that Seligman was actually responsible or would ever be compelled to build “step-downs” in the units previously sold. Further, Seligman was awarded damages for total reconstruction of all 42 stairwells. There was no showing of Seligman’s liability to rebuild these stairwells. These damages appear to have been awarded under the theory of breach of a fiduciary duty in that the “step-downs” were part of the initial design but not part of the flat plate flying form design. The damages here were improper because they did not involve actual damages to Seligman, but instead were in the nature of damages for repairs which might occur in the future. On retrial, Seligman shall be entitled to recover future damages only if it can be shown that the repairs will necessarily occur and that Seligman will be responsible for them. Damages, if any, arising from diminution in value may be the subject of amended pleadings and proof on retrial.

POINT IV.

WHETHER THE $14,232.16 AWARD FOR DELAY DAMAGES IS SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE.

No error has been made to appear under this point and said amount is thus affirmed.

POINT V.

WHETHER THE LOWER COURT WAS CORRECT IN HOLDING ALL THE COUNTERDEFENDANTS LIABLE FOR THE COMPENSATORY DAMAGE AWARDS.

The trial court awarded $615,564.65 in compensatory damages and $204,401.19 in prejudgment interest. These awards were jointly and severally against Adler, Versatile, J & R Forming, Frankenfield, Donner, Mescon, and Ketchum. We hold that these damages were improperly assessed against Donner and Mescon. The only evidence concerning Donner was his role as a shareholder in Versatile. There is no evidence that Mescon was involved in any manner. The trial court made no specific conspiracy findings against either Donner or Mescon and the awards of compensatory damages against these defendants are reversed. It is argued that Donner and Mescon were partners in J & R Crane Service but we find no evidentiary basis for this holding. The awards as to the other defendants are dealt with in other portions of this opinion.

POINT VI.

WHETHER THE LOWER COURT ERRED IN AWARDING $204,401.19 AS PREJUDGMENT INTEREST.

We conclude that the court erred in awarding prejudgment interest and said award is hereby vacated and reversed. Contrary to appellees’ contentions the counterclaim sought unliquidated damages and prejudgment interest is not proper under such circumstances. See Bryan & Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972). The grounds for most of the damages were breach of a fiduciary duty and conspiracy. The siphoning off of profits which were due Seligman and the bad faith creation of work to be done by the conspiring individuals and corporations give rise to damages of an unliquidated rather than liquidated nature. If, at a new trial on damages, Seligman can show liquidated damages from a certain date as to any particular aspect of the damages, then prejudgment interest would be appropriate as to these items.

POINT VII.

WHETHER THE LOWER COURT ERRED IN HOLDING SELIGMAN OF FLORIDA COULD RECOVER ATTORNEYS’ FEES FROM ALL THE COUNTERDEFENDANTS FOR ALL OF ITS LAWYERS’ WORK.

Appellants correctly contend that attorneys’ fees are only recoverable against Versatile on Seligman’s successful defense of the mechanic’s lien foreclosure action. Here, although the trial court has yet to determine the amount of attorneys’ fees, the judgment establishes liability for attorneys’ fees in favor of Seligman as the prevailing party against all of the counterde-fendants. It was error for the trial court to award fees in Seligman’s favor for the prosecution of the counterclaim against all of the counterdefendants. This award of attorneys’ fees was not on the mechanic’s lien action; it was instead for the prosecution of a claim for conspiracy and breach of a fiduciary duty. There is no indication as to why attorneys’ fees would be allowable on such claims. The fee award is thus reversed and may be reconsidered on remand.

POINTS VIII, IX, X, AND XI.

WHETHER REVERSAL OF THE COMPENSATORY DAMAGE AWARDS MANDATES REVERSAL OF THE PUNITIVE DAMAGE AWARDS.

WHETHER PUNITIVE DAMAGES MAY BE AWARDED BY A TRIAL JUDGE SITTING NONJURY IN AN ACTION SEEKING EQUITABLE RELIEF.

WHETHER THE LOWER COURT ERRED IN HOLDING THAT SELIG-MAN OF FLORIDA, A STRANGER TO THE JOINT VENTURE AGREEMENT BETWEEN SELIGMAN SOUTHEAST AND ADLER, COULD RECOVER PUNITIVE DAMAGES BECAUSE ADLER BREACHED A FIDUCIARY DUTY OWED SELIG-MAN SOUTHEAST.

WHETHER THE RECORD SHOWS WRONGS OF SUCH ENORMITY AS TO JUSTIFY PUNITIVE DAMAGE AWARDS TOTALING $1,310,000.

This court has previously reversed and remanded for a new trial as to substantial portions of the compensatory damage awards and the awards of interest and attorneys’ fees. The question is thus presented as to whether reversal of substantial aspects of the compensatory damage award also requires reversal of the punitive damage award. We conclude that the punitive damage award should also be reversed and that the matter should be remanded for a new trial. This new trial will be as to the amount of compensatory damages and as to the overall award of punitive damages. We hold that the counterplaintiff has established liability for compensatory damages for conspiracy and breach of a fiduciary duty and that the new trial should relate only to the amount of such damages. As to punitive, damages we order a new trial as to both issues of liability and amount. In doing so we recognize that compensatory damages include (1) actual damages and (2) nominal damages, and that either is sufficient to sustain an award of punitive damages. See Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976). We find that a new trial on the amount of compensatory damages and liability for punitive damages is necessary for several reasons. The four and one-half year delay in issuing the final judgment and the necessity for a retrial under greatly changed factual circumstances indicate that both the amount of compensatory and liability for punitive damages should be retried by the same fact finder. On remand one judge will determine the amount of both compensatory and punitive damages if they are found to be appropriate. Suit was initially filed in 1974, and at trial, many of the units were yet unsold. What was previously considered as “future damages” will obviously be subject to much different proof in a post-1984 environment when the case will be retried. Also, our rulings on several of the compensatory damages issues will substantially change the facts and evidence to be presented on a retrial.

Although the authorities are not unanimous, the weight of authority is against a remand which would force the fact finder to assess a punitive award even in the face of established liability for compensatory damages. See United Air Lines, Inc. v. Weiner, 286 F.2d 302 (9th Cir.1961); Atlantic Coast Line R.R. Co. v. Bennett, 251 F.2d 934 (4th Cir.1958) and Smyth Sales, Inc. v. Petroleum Heat & Power Co., Inc., 141 F.2d 41 (3d Cir.1944). Although Florida has not directly passed on this precise point it is clear that a litigant has no right to a punitive award even if the evidence would support such an award. In St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983) the court discussed the distinctions between compensatory and punitive damages and stated as follows at 247:

In contrast, a plaintiff has no right to punitive damages. Fisher [v. City of Miami, 172 So.2d 455]; Florida East Coast Railroad v. McRoberts, 111 Fla. 278, 149 So. 631 (1933). Punitive damages are awarded to punish the wrongdoer and to deter the commission of similar acts in the future. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Wackenhut [Corp. v. Canty, 359 So.2d 430]; Campbell v. Government Employees Insurance Co., 306 So.2d 525 (Fla.1974). Once the plaintiff has introduced evidence to establish a basis for recovery, the jury, acting on behalf of the public, has the responsibility to determine whether to award punitive damages and, if so, what amount would best serve the public policy of punishment and deterrence. Wackenhut; Wangen [v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437]; Louisville & Nashville Railroad [v. Street, 164 Ala. 155, 51 So. 306]. As counsel for respondent conceded in oral argument, a jury may decide not to award punitive damages even though the evidence would support such an award, Wackenhut, and the plaintiff would have no recourse unless he could prove fraud or an improperly influenced jury. In such a situation, the plaintiff must accept the jury verdict since it is not appealable.

Under this rationale we conclude it would be inappropriate to remand with a mandatory requirement that punitive damages be assessed.

We find Point IX and X to be lacking in merit and do not address them.

The judgment is affirmed in part, reversed in part and remanded for further proceedings.

DOWNEY and LETTS, JJ., concur.

      . This Court issued an initial opinion on July 27, 1983 which was withdrawn and replaced by the present opinion issued on rehearing.