author: JOANOS, Judge. THOMPSON, Judge,

text:
    Kenneth B. SMITH and Elizabeth J. Smith, Appellants, v. TAYLOR COUNTY PUBLISHING COMPANY, INC.; Alma E. Tapers; Live Oak Publications, d/b/a the Perry News Herald; and Doris Morgan, Appellees.
    No. AN-103.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.

      W. Crit Smith of Boyd & Smith, P.A., Tallahassee, for appellants.
    Arthur C. Beal, Jr. of McConnaughhay, Roland & Maida, P.A., Tallahassee, for ap-pellee, Live Oak Publications.
    C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellees, Taylor County Publishing Company, Inc., Alma E. Tapers, and Doris Morgan.
   JOANOS, Judge.

Kenneth B. Smith and Elizabeth J. Smith appeal from a final order dismissing their complaint with prejudice for failure to state a cause of action. We affirm in part and reverse in part.

The Smiths are the principals of Taco Printers, Inc., which publishes a newspaper in Taylor County entitled, “The Taco Times.” Appellee Live Oak Publications, Inc., currently publishes “The Perry News-Herald,” the other Taylor County newspaper. Taylor County Publishing Co., Inc. previously published that newspaper.

Three articles printed in “The Perry News-Herald” are the subject of this libel suit. The first article was a “letter to the editor,” written by a Buddy Sadler and printed on December 18, 1980. It dealt with Sadler's personal opinion about the tactics of the Taco Times. The second article was a “news story,” which was printed on December 24, 1980. It reported an alleged physical confrontation between Kenneth Smith and Buddy Sadler. The third article was a “column,” which was also printed on December 24, 1980 by Doris Morgan, the Editor of the Perry News-Herald, entitled “Barbs We Ignore, But Physical Violence is Something Entirely Different.” The “column” dealt with the alleged confrontation between Smith and Sadler as well as an alleged earlier confrontation, taking place in 1963 between Smith and Bill Griffin, the then News-Herald Editor.

The Smiths alleged that the three newspaper articles contained false and defamatory statements, all of which were published with malice. The appellees contended that there is no cause of action because the articles were either protected by the neutral reporting privilege or privileged expressions of pure opinion.

The trial judge held that (1) the “letter to the editor” contained only expressions of pure opinion and, therefore, was privileged; (2) the “news story” was protected by the neutral reporting privilege, because the article was a disinterested report of a newsworthy event, which was simply a reprint of statements made by a police officer and Sadler; and (3) the “column” written by Doris Morgan was also a privileged expression of pure opinion, because the column contained a recitation of the facts upon which her opinions were based.

We affirm the trial court’s determinations that the “letter to the editor” and the “news story” are not actionable for the reasons stated, but reverse with regard to the “column.”

Whether alleged libelous statements are pure expressions of opinion or not is for the court to decide as a matter of law. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981). In this case the trial judge made a determination that no cause of action existed and dismissed the complaint with prejudice. The Smiths were refused an opportunity to amend their complaint, apparently because the trial judge believed that no matter how the complaint was amended it would not sustain a cause of action.

The complaint as directed against the “column” contained sufficient allegations to set forth a cause of action upon which relief can be afforded. The “column” complained of reads as follows:

Around the Bend
by Doris Morgan
Barbs We Ignore, But Physical Violence Is Something Entirely Different
It is with regret that I feel compelled to write this week about the differences between the two newspapers which serve Taylor County ... regret because this competition, for the second time since the other newspaper was established in 1963, has been reduced to physical violence.
In last week’s column I noted that we here at the News-Herald try to ignore the petty differences and accusations cast by our competitors across town. Following the article in Sunday’s edition of that paper, we sternly decided that, even though we were upset by the insinuation that the News-Herald is giving away advertising ... an absolute untruth ... we would again ignore the written barb.
Since early this year, we adopted the philosphy that we would not fuel the fire of the other newspaper’s attempt to fight with any sort of reply.
We have committed ourselves to improving this newspaper, relying on our readers to judge for themselves.
But, there are exceptions to the rule ... some things can’t be ignored.
Monday afternoon, at the request of Betsy Smith, Buddy Sadler hand-carried the original copy of a letter he wrote criticizing her newspaper last week. Incidentally, Sadler said he had mailed the copy, addressed to Ken Smith, in time for their paper to receive it for last Thursday’s edition.
Sadler, the husband of News-Herald paste-up artist Melva Sadler, had copied the letter to me. He asked, after a recent half-page attack by the competitor, if he could write a letter. He knew of our philosophy about ignoring the threat but said he wanted to say something himself.
Mrs. Smith, as noted in her newspaper’s article Sunday, had asked permission to see the original copy. I informed her in an “interview” which lasted the total of 90 seconds that I would tell Buddy and he could bring her the original.
Following the story, Buddy decided that he would carry his handwritten original to the Smiths. He did so Monday afternoon.
Sadler said when he was asked by Ken Smith why he wrote the letter, “I told him I wrote the letter because of the numerous articles in his paper criticizing the News-Herald and further, that I thought it was a waste of time and paper to print such criticism.”
Smith apparently didn’t like the answer. He ordered Sadler out of his office. At this point, according to Sadler, Smith apparently felt moved to stress his point. Sadler said that, when he reached the door, Smith struck him behind the head, propelling him onto the sidewalk.
Some unidentified woman was nearly knocked over as Sadler stumbled.out the door. Sadler said when he turned around to face Smith and received a kick on the thigh, the woman turned, went to her vehicle and drove off.
Sadler then went to the courthouse, called in the authorities and filed a formal complaint charging Smith with assault.
Just how much good that will do is questionable. The only known witnesses to the event, according to Sadler, were Smith’s employees and his wife. Sadler does not know the identity of the woman who left the scene.
It may be that Smith gets away with this absolutely uncalled-for action as he has managed to escape our replies to his barbs.
It may be that he tries other tactics against me Sadler and this newspaper in his continuing efforts to harass the News-Herald.
Knowing all these possibilities, however, I felt that this latest act of physical violence by Smith could not be ignored. The first incident came about in the mid-1960’s when Smith assaulted then News-Herald Editor Bill Griffin over a similar disagreement.
Such conduct is appalling in a profession dedicated to the precept that the pen is mightier than the sword.
Most journalists abhor physical violence and try to prevent it by keeping the public informed of facts.
As I noted in the beginning, I regret the necessity for having to respond to Smith’s actions. I regret it because I must search my own conscience to determine if I could have prevented the incident.
I could have refused to print the letter, I suppose. But then, I asked myself, why Sadler should be deprived of his right to an opinion simply because his wife is on the newspaper payroll.
I didn’t encourage him. Neither did I discourage him.
Even so, I’m still not sure that I couldn’t have prevented the Monday afternoon incident. But the knowledge that this isn't the first time Smith has become physically violent and knowing that Buddy was not seriously injured by the attack makes me feel less guilty.
Another consideration in the search of my conscience is the fact that I don’t throw letters criticizing the News-Herald in the trash.
I have always felt that readers have the right to complain, and to have other readers know about their complaints.
I have never refused to print a letter criticizing the News-Herald as long as they conform to the basic rules; (1) being signed; (2) having no profanity or libel, and (3) being legible.
I feel I probably will receive at least one letter of reaction to this week’s column ... and that will be printed, pro or con, as long as those rules are met.
At this point, I still have the feeling that I could have done something to prevent the incident. I’m not sure just exactly what, but something.
I can only assure Buddy, and others who might criticize the Smiths that I will do all I can to prevent the recurrence of such physical attacks. But, then, I don't know what that might be either.
I hope that I won’t find it necessary to again dedicate this space to a response to-Smith’s innuendoes that News-Herald is falling apart ... last time I looked it was holding together pretty well ... or to the defense of some person who falls victim to an uncontrolled temper.
As I’ve said before, there are more important things to discuss, more important to the comniunity than petty disagreements between competing newspapers, (emphasis supplied).

The circuit judge in his order found as follows pertaining to the column:

Likewise, the December 24, 1980 column by Doris Morgan is also a privileged expression of pure opinion. It is clear from reading the column that Mrs. Morgan is expressing her opinion about the incident between Kenneth Smith and Buddy Sadler. The column contains a recitation of the facts upon which her opinions are based. While Plaintiffs may not like what is written, the column is the type of commentary protected by Gertz and the cases that have followed.

It is clear, as the trial court determined, that a writer’s opinion about a newsworthy item is a protected privilege. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); 400 So.2d at 56. The Court in Gertz held:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.

418 U.S. at 339, 340, 94 S.Ct. at 3007. However, it is not clear that the statements made by Doris Morgan in her column were mere expression of opinion.

Although pure expression of opinion is constitutionally protected, mixed expression of opinion is not. Pure expression of opinion exists when an article expressing an opinion is published and sets forth, in the article, the facts on which the opinion is based or when the parties to the communication are aware of the facts or assume their existence and the opinion is clearly based on those facts. Mixed expression of opinion exists when a published statement containing an opinion is made and is not based on facts set forth in the article, or assumed facts and, therefore, implies the existence of some other undisclosed facts on which the opinion is based. Restatement (Second) of Torts, § 566, pp. 171-173; 400 So.2d at 57.

In the complaint, appellants alleged that the “column” was published with actual malice and contained certain false defamatory statements. In From the court stated that in order to determine whether an allegedly defamatory statement is actionable it must be analyzed in terms of the test enunciated in Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980):

In sum, the test to be applied in determining whether an allegedly defamatory statement constitutes an actionable statement of fact requires that the court examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.

611 F.2d at 784; 400 So.2d at 57.

If the “column” had included only a reporting of what Sadler had said about the alleged physical confrontation with Smith and included opinion based on those facts, it would not have been actionable. However, in addition to reporting the incident pertaining to Sadler, the writer made certain factual assertions about an earlier incident without citing the source of the information. These included the items that we have underlined in the column.

The column contained more than a reporting of what Sadler alleged, or opinions based on those facts. The factual assertions regarding the 1963 incident changed the context of the article. The column no longer represented just the writer’s opinions about Sadler’s allegations. It was transformed into an attack against Smith, asserting that he was a violent person with violent tendencies. The history given in support of that proposition included both the incident involving Buddy Sadler and the earlier incident taking place in 1963 involving Bill Griffin, the then News-Herald Editor. The reader was provided with a gauge to measure the Sadler “facts,” but not as to the 1963 incident. The 1963 incident was merely printed as fact without any cautionary terms or attributing it to any source.

The column is, therefore, not merely an expression of pure opinion. In alleging that the factual assertions set out in the column were made fraudulently and with malice and that the petitioner Kenneth Smith has been harmed as a result, appellants stated a cause of action upon which relief can be afforded. Therefore, Kenneth Smith should have been granted an opportunity to demonstrate that the factual assertions made in the article were false and defamatory as was alleged, as to the 1963 incident. A cause of action upon which relief may be granted has been stated whether Kenneth Smith is determined to be a private individual or a public figure.

The allegation that misstatements were made fraudulently and with malice sets forth a cause of action whether Kenneth Smith is a private individual or a public figure. Whether he is a public or private figure is a determination which has not yet been made at the trial level. Whether or not Kenneth Smith is a public or private figure, he will first have to prove that the written statements, as to the 1963 incident, are inaccurate. If he is a public figure, he will then be required to prove that the misstatements were made with actual malice. If he is a private figure, he would also be required to prove that the misstatements were the result of actual malice in order to recover punitive damages. However, if he is a private figure he could recover compensatory damages upon a showing of negligence. We reach these conclusions upon the following analysis of the case law.

The United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established a first amendment qualified privilege of fair comment, which protects defendants in defamation cases from suits by public officials. The privilege extends even to false statements of fact as long as they are not made with “actual malice.” In order to recover damages a public official is required to prove that the defamatory statement was either published with knowledge that the statement was false or with reckless disregard of the truth.

The meaning of “reckless disregard of the truth” was clarified by the supreme court in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), when it stated:

... reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. 390 U.S. at 731, 88 S.Ct. at 1325.

The “actual malice” standard was subsequently extended to public figures in Curtis Publishing v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The court found the New York Times rationale equally applicable to both public officials and public figures.

In Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the emphasis in defamation cases briefly shifted away from the individual plaintiff and centered on the subject matter involved. The Supreme Court held that the “actual malice” standard applied to plaintiffs involved in matters of public or general concern regardless of their status as individuals.

Rosenbloom was overruled several years later by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), which again focused attention on the plaintiff. The supreme court ruled that the New York Times “actual malice” standard was limited to public officials and public figures. The court held that a simple negligence standard applied in federal defamation suits brought by private individuals. However, in attempting to balance the competing interests of freedom of the press and the reputation of the individual, recovery by private individuals was limited to an amount necessary to compensate them for their actual injuries by requiring that the New York Times “actual malice” standard be met in order to recover punitive damages. 418 U.S. at 349, 350, 94 S.Ct. at 3011-3012; Helton v. United Press International, 303 So.2d 650 (Fla. 1st DCA 1974).

Although private individuals must only meet a negligence standard at the federal level, the Gertz court held that states can adopt any standard, with regard to private individuals, including requiring them to meet an “actual malice” standard, as long as it does not impose strict liability. 418 U.S. at 347, 94 S.Ct. at 3010.

The Gertz decision also defined the occasions when a plaintiff in a defamation suit would be subject to an “actual malice” standard as a public figure. The court held:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

418 U.S. at 351, 94 S.Ct. at 3013.

In order to become a limited public figure the individual must be involved in an actual public controversy. In addition, a limited public figure is subject to an “actual malice” standard only in those contexts where his participation in a controversy is sufficient to gain him general fame or notoriety in the community, and constitutes pervasive involvement in the affairs of society. 418 U.S. at 351, 94 S.Ct. at 3012-3013. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Wolston v. Reader’s Digest Association, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Arnold v. Taco Properties, Inc., 427 So.2d 216 (Fla. 1st DCA 1983); J. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349 (1975).

Until recently, it has not been altogether clear which constitutional standard a private individual must meet in a defamation suit in Florida, because the Florida Supreme Court has not had an opportunity to rule squarely on this point. However, the Third District Court of Appeal in Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982) in an opinion in which the pertinent law was discussed at length, held:

... in accord with established First Amendment law and the overwhelming weight of authority throughout the country, that under Florida law such a nonpublic figure plaintiff is not required under any circumstances to make such an “actual malice” showing as an element of his cause of action, it being sufficient if the plaintiff establishes, as here, that the defendant published the alleged false and defamatory statements with negligence [i.e., without reasonable care as to whether the alleged false and defamatory statements were actually true or false].

423 So.2d at 378. That determination was concurred in by this Court in Brown v. Tallahassee Democrat, Inc., 440 So.2d 588 (Fla. 1st DCA 1983). The Gertz negligence standard is, therefore, the law as to private individuals in defamation cases where compensatory damages are sought.

The order appealed from is REVERSED in part and REMANDED for proceedings consistent with this opinion.

WENTWORTH, J., concurs.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

I dissent. I would affirm the trial judge’s dismissal of the libel complaint with prejudice.

Although the majority finds that one of the three allegedly libelous newspaper articles states a cause of action in libel, in my opinion none of them is a sufficient basis for a cause of action in libel. The article found sufficient by the majority is not libelous as a matter of law. If it is libelous then our local sports editor will have to stop writing about the “Gators” and our local food editor will have to cease rating restaurants.

The article which the majority finds is a sufficient basis for a cause of action expressed the writer’s opinion about a newsworthy item and was a fully protected privileged opinion under Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The language complained of in the article is no more libelous than that in From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981), pet. for rev. den., 412 So.2d 465 (Fla.1982), in which this court applied the Gertz standards and affirmed a dismissal with prejudice of the libel complaint even though the court found that Prom was not a public figure. Under the facts of this case, Smith is a public figure as a matter of law. He has made himself a public figure, similar to the editor in Gibson v. Maloney, 231 So.2d 823 (Fla.1970), cert. den., 398 U.S. 951, 90 S.Ct. 1871, 26 L.Ed.2d 291 (1970), by virtue of his newspaper publishing activities and by his running battle with his local competition in the newspaper business. He is therefore subject to fair comment. In Gibson, the Supreme Court found that a local newspaper editor and publisher in Apalachicola, who engaged in an anti-duPont editoral policy for the purpose of arousing public indignation against duPont interests, made himself a public figure engaged in public enterprise. The court concluded he became a part of the passing scene and was therefore subject to fair comment. Gibson distributed copies of a speech in which he stated that the newspaper and its publisher, Maloney, took pleasure in berating and abusing any business interest in the community and that Maloney, in his frequent references to the Alfred I. duPont Estate and its various interests, not only vented his displeasure and venom but in some instances published outright falsehoods regarding the estate. In Gibson v. Maloney, 263 So.2d 632 (Fla. 1st DCA), cert. den., 268 So.2d 909 (Fla. 1972), cert. den., 410 U.S. 984, 93 S.Ct. 1505, 36 L.Ed.2d 180 (1973), this court found that the Supreme Court’s decision that Maloney was a public figure was the law of the case and that the article complained of was not actionable libel as a matter of law. The case was remanded with instructions for the trial court to enter a judgment for Gibson. If accusing a newspaper and its editor of printing outright falsehoods is not libelous, then I do not see how the article complained of in this case can be actionable.

This case is similar in one major respect to the “ravioli case,” D.C. v. State, 436 So.2d 203 (Fla. 1st DCA 1983). Although the “ravioli case” involved one child throwing ravioli at another, while this case involves older persons throwing a few words, neither case should be consuming the time of the very busy trial and appellate courts of our state. As stated in D.C. v. State, “[tjhis case presents a perfect example of a disturbing societal proclivity towards settling all disputes through resort to a severely overburdened judicial system.” 436 So.2d at 204.

As the majority quoted from Gertz: “However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” 418 U.S. at 339, 340, 94 S.Ct. at 3007 (footnote omitted). If anyone is capable of protecting their own interest in a minor controversy such as the one involved in this case, it should be the publisher and editor of a newspaper who has the full resources and power of the press at his disposal. If a newspaper can publish almost anything about a public figure with immunity, then surely at least the same immunity should attach to a statement made about the editor and publisher of a newspaper. Perhaps the appellant has chosen the wrong profession. If one cannot stand the heat he should not go into the kitchen and, more particularly, should not try to be chef.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    McDONOUGH POWER EQUIPMENT, INC., Appellant/Cross-Appellee. v. Charles Andrew BROWN, a minor, by and through his parents and natural guardians, Charles Alan Brown and Patricia J. Brown, and Charles Alan Brown and Patricia J. Brown, individually, Appellees/Cross-Appellants.
    No. 81-2091.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearings Denied Feb. 8, 1984.

      Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant/ cross-appellee.
    Joe N. Unger of Law Offices of Joe N. Unger, P.A., Miami, and Major & Logan, P.A., Miami, for appellees/cross-appellants.
   HERSEY, Judge.

In an action for personal injuries brought by the injured minor plaintiff, Andrew, and his parents (for medical expenses) the jury brought in a verdict that was internally inconsistent, a second verdict suffering from the same impediment and ultimately a verdict which was accepted by the trial court. The following chart summarizes the results and points up the difficulty:

VERDICTS 1_2_3

Andrew’s compensatory 100,000 - 150,000 damages

Parent’s compensatory - 100,000 150,000 damages

Punitive damages 50,000 50,000 80,000

Various motions for mistrials were denied. Post-trial, the trial court granted appellant’s renewed motion for a directed verdict as to the claims for punitive damages and his motion for remittitur reducing the parents’ compensatory damages to $41,000, the amount of medical expenses evidenced in the record. As our introductory remarks foreshadow, we find no error concerning the trial of the liability issue. We thus confine our review to the propriety of damages, appellant’s second point on appeal.

After the jury brought in the first verdict, the trial court resubmitted to the jury only the issue of compensatory damages. This was clearly erroneous. Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966). However, this error was cured when the jury was reinstructed following the second verdict at which time all the issues were resubmitted to the jury. This leaves only the question of whether the ultimate verdict totalling $380,000 may be sustained. As a result of the striking of the punitive damages by directed verdict and the reduction by remittitur of the parents’ claim to $41,000, damages of $191,000 remained. We affirm the .elimination of punitive damages. Punitive damages are reserved for those cases involving an outrageous disregard for the rights of another. The evidence in this case is insufficient to constitute gross disregard for others. City of Hollywood v. Coley, 258 So.2d 828 (Fla. 4th DCA 1971). However in our view the acceptance of a $380,000 verdict which was immediately subject to reduction to $191,-000, constitutes an abuse of discretion. Clearly the jury was extremely confused throughout, so that the product of their deliberations was meaningless. Under the circumstances we are compelled to reverse and remand for a new trial on the issue of compensatory damages only.

REVERSED and REMANDED.

DOWNEY and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    In re The ESTATE OF Charles M. McARTHUR, Deceased. Nadean HUFF, Appellant/Cross Appellee. v. John A. GENTRY, Appellee/Cross Appellant.
    No. 82-1431.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied Feb. 7, 1984.
    Michael J. Pucillo and Paul B. Erickson of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellant/cross appel-lee.
    Woodrow “Mac” Melvin, Jr., and James R. George of Ruden, Barnett, McCloskey, Schuster & Russell, P.A., Miami, for ap-pellee/ cross appellant.
   PER CURIAM.

Nadean Huff, a beneficiary of the McAr-thur estate, appeals an award of attorney’s fees adjudicated against her in her individual capacity. The case was tried in the probate division in which the estate is being administered apparently by consent of the parties. The prevailing attorney, John A. Gentry, cross appeals, complaining that the award is inadequate. Both sides ably presented their case before the trial court and here, which has been helpful.

We are guided by the general rule that the amount of an attorney fee award is a matter of discretion and will not be disturbed absent a clear showing of abuse. In re Estate of Griffis, 399 So.2d 1048 (Fla. 4th DCA 1981). The trial court heard expert testimony and based its determination of a fee on the factors set forth in Disciplinary Rule 2-106(B) of the Code of Professional Responsibility governing the conduct of attorneys. We are in no position (nor should we be) to second guess the reasonableness of the fee. Applying the standard established in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) we cannot say that no reasonable man could take the view taken by the trial court. Accordingly, we affirm.

AFFIRMED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: JO ANOS, Judge.

text:
    Donald Earl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AP-199.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.
    William R. Slaughter, Live Oak, for appellant.
    Jim Smith, Atty. Gen. and Wallace All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   JO ANOS, Judge.

Williams appeals his conviction for murder in the first degree by arguing that the trial court erroneously denied his motion for mistrial and erroneously allowed impeachment testimony. We affirm.

During Williams’s trial for murder and attempted robbery, the prosecution called LeWayne Henderson (Henderson) to testify regarding his own, Williams’s and Ernest Turner, Jr’s. (Turner) involvement in the attempted robbery in which a gas station attendant died of a gunshot wound. Henderson had been convicted of first degree murder in a previous trial for the same crime. On voir dire and out of the jury’s presence, Henderson testified that he had no knowledge of what happened and denied any involvement in the crime. The prosecution asked that Henderson be called as a court witness and it be allowed to contradict Henderson by other evidence. Williams objected that the state should not be allowed to impeach its own witness under the circumstances. The trial court instructed the jury that Henderson was to be called as the court’s witness because the state could not vouch for his credibility. Henderson, testifying before the jury, denied he made any statements that he, Williams or Turner were involved in the crime. Henderson was then asked if he had told a deputy sheriff moments before being called to testify that Williams had said something which caused him (Henderson) not to testify. Henderson responded, “[w]ell, yes, it was that, but it just was talk, something like hearsay, you know, some inmates at the county jail.” After his motion for a mistrial was denied, Williams declined to cross-examine Henderson.

Turner, who had pled guilty to second degree murder and was sentenced to life imprisonment, testified that he, Henderson and Williams planned the robbery and that Henderson and Williams shot the gas station attendant.

After voir dire and a jury instruction that the testimony was to be used only to judge Henderson’s credibility, Officer Bridges testified that, a few days before trial, Henderson had made two separate statements implicating himself, Turner and Williams.

Williams does not now argue any impropriety in the trial judge’s calling Henderson as a court witness. Given the state’s inability to vouch for Henderson’s credibility, we find no abuse of discretion in the trial court’s action. Armstrong v. State, 399 So.2d 953, 959 (Fla.1981).

Once Henderson became a court witness, he was subject to cross-examination by all parties. Section 90.615(1), Florida Statutes (1981). It is well established that a wide range of cross-examination is permitted to impeach the credibility of a witness. Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). The state’s inquiry into whether Henderson had told a deputy sheriff he was threatened was no more than a question directly affecting his credibility and a foundation for the introduction of impeachment evidence. Where the question and answer were not of themselves such an inflammatory nature as to deny a fair trial, the proper procedure is to object and request curative instructions. Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974). Absent any objection or request for curative instructions, there has been no showing of an abuse of discretion by the trial judge’s failure to declare a mistrial.

As a court witness, Henderson was subject to impeachment by the use of prior inconsistent statements. Chapman v. State, 302 So.2d 136 (Fla. 2d DCA 1974). Before Officer Bridges was allowed to testify before the jury, the trial judge instructed the jury that his testimony was to be used for the limited purpose of determining Henderson’s credibility, and specifically instructed them not to use the testimony as evidence of Williams’s guilt or innocence. Given the limiting instruction, the trial court properly allowed the prior inconsistent statements to impeach Henderson’s credibility. Mabery, at 138. See also, Mazzara v. State, 437 So.2d 716 (Fla. 1st DCA 1983).

We note that the prior inconsistent statements, properly admitted for impeachment purposes, could not be used as substantive evidence of Williams’s guilt. McNeil v. State, 433 So.2d 1294 (Fla. 1st DCA 1983). Here, however, unlike in McNeil, there is sufficient substantive evidence upon which the jury could base its verdict.

The judgment and sentence appealed are AFFIRMED.

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


author:
THOMPSON, Judge. NIMMONS, Judge,
      ERVIN, Chief Judge,

text:
    FRANK’S FINE MEATS and Travelers Insurance Company, Appellants, v. Sam SHERMAN and Division of Workers’ Compensation, Appellees.
    No. AQ-445.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.
    Rehearing Denied Feb. 7, 1984.
    Richard E. Hodges of Miller, Hodges & Kagan, Miami, for appellants.
    Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee Sam Sherman.
    Susan J. Silverman of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellee Florida Ins. Guar. Ass’n.
   THOMPSON, Judge.

The employer/carrier (E/C). appeal a compensation order contending that the deputy commissioner (deputy) erred in finding that the claimant sustained a compen-sable accident and in finding that the claimant was permanently totally disabled (PTD). We affirm in part and reverse in part.

There is competent substantial evidence to support the deputy’s finding that the claimant sustained a compensable accident on January 7, 1980 and this finding is affirmed.

The deputy’s finding that the claimant was PTD is not supported by competent substantial evidence. Section 440.-15(1)(b), Fla.Stat. (1979), in effect at the time claimant sustained his accident on January 7, 1980, provides that no compensation for permanent total disability shall be payable “if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to .do even light work due to physical limitation.” The claimant cites approximately 15 cases in support of his argument that the finding of PTD was proper. However, these cases are inapplicable herein because not a single one involved an accident occurring on or after August 1, 1979, the effective date of the very substantial changes to § 440.15(1) which apply to this post-August 1, 1979 accident. Citing Tropicana Pools v. Truex, 287 So.2d 71 (Fla.1973), claimant also contends that by law the deputy could accept his own personal observation that the claimant was “patently” disabled “in the teeth of contrary medical evidence” given by his attending physician. The claimant also testified to physical limitations that were not supported by the medical evidence. Although Tropicana is the law applicable to accidents occurring prior to August 1, 1979, it is not applicable to cases involving accidents occurring on or after August 1, 1979. As to the latter accidents, the determination of the existence and degree of permanent impairment must be based upon medically or scientifically demonstrable findings and cannot be based on the claimant’s complaints or the deputy’s evaluation of those complaints and mere observation of the claimant. The only competent substantial medical evidence showed that the claimant was able to work. There was no competent substantial evidence to support the deputy’s finding of PTD and his excusal of a further work search by the claimant. Neither the claimant’s complaint of pain and his stated limitations, which were not supported by the medical evidence, nor the deputy’s observations, are competent substantial evidence to support a finding of PTD. In Regency Inn v. Johnson, 422 So.2d 870, 873 (Fla. 1st DCA 1982), this court pointed out the distinction between the language in the PTD Section 440.15(l)(b) and permanent impairment and wage loss benefit Section 440.-15(3) saying:

We also note that the statutory language on wage loss, supra, stands in contrast to that which governs a claimant’s burden in establishing permanent total disability, i.e., “the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations,” and no compensation of that character shall be payable “if the employee ... is physically capable of ... gainful employment.” (emphasis supplied by court)

The court went on to hold that the language in § 440.15(3) was less restrictive and would permit payment of wage loss benefits resulting from economic incapacity caused by job disruption as well as physical incapacity whereas the PTD is restricted to disability resulting from physical incapacity. There being no competent substantial evidence that the claimant is PTD because of physical incapacity, the award of PTD is REVERSED.

NIMMONS, J., specially concurs with opinion.

ERVIN, C.J., dissents with opinion.

NIMMONS, Judge,

specially concurring.

I concur in Judge Thompson’s opinion. In my view, the deputy’s order and Judge Ervin’s dissent do not give sufficient recognition to the substantial changes in the criteria for permanent total disability fashioned by the 1979 legislative amendments to Section 440.15(1). As amended, permanent total disability benefits are awardable only where the employee is unable uninterruptedly to do even light work due to his physical condition. The claimant in the instant case has failed to sustain his heavy statutory burden of presenting competent substantial evidence supporting the requisite criteria for permanent total disability. As pointed out by Judge Thompson, much of the PTD case law relied upon by the claimant is of limited application as it deals with the pre-1979 amendments statute.

ERVIN, Chief Judge,

dissenting.

Although I agree with the majority that a compensable accident occurred on January 7, 1980, causing injury to the claimant, I must respectfully take issue with its conclusion that the deputy’s finding of permanent total disability is unsupported by competent, substantial evidence.

At the hearing, claimant’s treating physician diagnosed claimant as suffering from two herniated cervical discs, as well as neurological damage, with resulting pain in his neck and shoulder. The physician had performed five surgical procedures, including two operations, leaving claimant with a 30% permanent impairment of the body as a whole, 15% of which was causally related to the compensable accident. In view of this extensive impairment, he advised claimant not to resume work as a meat handler, a job requiring him to lift crates of meat weighing up to 30 pounds, although his activities were not otherwise limited. Claimant, a 63-year old man with a high school education, testified that he was unable to drive a car due to pain in his neck and inability to turn his neck without turning his whole body; that he had trouble bending over, and that he had difficulty lifting items such as newspapers because of shoulder pain. He applied for several jobs, including delivery work for Purolator and a magazine, but was rejected as a result of his physical limitations in regard to lifting. He applied to a hospital and some high rises, seeking light security work, but found no openings. Based on this evidence, as well as his own close observations of claimant’s condition, the deputy excused him from further work search, concluding that claimant was permanently and totally disabled.

The majority appears to take issue, not with the sufficiency of claimant’s work search, but only with the sufficiency of the evidence to support the deputy’s finding that claimant is entitled to compensation for permanent and total disability under the criteria set forth in Section 440.15(l)(b), Florida Statutes (1979). Thus, the majority’s opinion discredits not only lay testimony, but also the deputy’s observations of the disabled worker. In so doing, the majority has ignored our prior comments recognizing that a deputy’s observations may be competent evidence in establishing a claimant’s entitlement to PTD: “The deputy’s observations of this distressed claimant, at the hearing, would be of considerable weight, were there a fragment of evidence authenticating claimant’s total impairment, — ” Hillsborough Community College v. Marie Miller, 440 So.2d 26 (Fla. 1st DCA 1983) (e.s.).

The majority’s novel interpretation of section 440.15(l)(b) now requires nothing less than medical evidence demonstrating physical incapacity. If there is no medical proof supporting a finding of PTD, the claimant — notwithstanding the abundance of other evidence relating to the question— is now considered not to have met his burden. This conclusion, I submit, runs counter to the long honored tradition of according a liberal interpretation to the Workers’ Compensation Act. In construing sections of Chapter 440, this court is to be guided. by the “most favorable remedy” doctrine, which requires that “ 'where the Act is susceptible of disparate interpretations, the court will adopt the construction which is most favorable to the employee.’ ” Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177, 1178 (Fla.1980), citing Henderson v. Sol Walker & Company, 138 So.2d 323, 327 (Fla.1962).

We have also held that lay testimony may be sufficient to sustain a compensation award even in the presence of conflicting medical testimony regarding the extent of the claimant’s disability, and that the deputy may consider not only lay testimony, but also his own personal view of the claimant as well. See, e.g., Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982). The deputy’s function as trier of fact is to determine credibility of the claimant’s testimony as to physical capability, and where the deputy has “closely observed” the claimant and considered all other evidence going to that issue, I consider that the award of PTD is supported by competent, substantial evidence. I would therefore uphold the deputy's order in its entirety.


author: JOANOS, Judge.

text:
    STATE of Florida, Appellant, v. Abdul Al-Baseer SULTAN, Appellee.
    Nos. AT-142, AT-143.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellant.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellee.
   JOANOS, Judge.

In the present cases, appellant was charged with two counts of dealing in stolen property and one count of defrauding an innkeeper. The basis of these charges was the use of stolen money orders to pay motel bills. Appellant was arrested in Gainesville and initially charged with several counts of dealing in stolen property, namely the attempt to use stolen money orders to make a purchase at a Radio Shack. Appellant was tried and convicted of those charges and that case (AS-292) was appealed to this court. All of the money orders involved in the charges against appellant in both cases were obtained by appellant at the same time according to evidence presented in the trial of AS-292. At that trial, one of the police officers who interviewed appellant upon his arrest said that although appellant initially claimed to have purchased the money orders at a Minit Market, appellant’s final statement about all five of the money orders was “that he had bought them from a whore in Jacksonville for two hundred and twenty-five dollars,” that she told him they were “hot,” and he did not ask any questions. During closing arguments in the trial of that case, in discussing the elements of the charge of dealing in stolen property, the prosecutor said that there are alternative definitions of the element of trafficking in that it may mean to sell, dispose of, or otherwise dispense the money orders, but it also means to buy, receive, or possess the money orders with the intent to use them later to buy property. The prosecutor then said, “either way I submit to you by either definition, we have proven that, on that date, he was trafficking in stolen money orders, that he was either transferring ownership of the money orders, disposing of the money orders, or possessing them with the intent to do that.” The clear import of the prosecutor’s argument was that the state had proven the element of trafficking under either Section 812.012(7)(a) or 812.012(7)(b), Florida Statutes. The trial judge instructed the jury on the alternative definitions of trafficking.

In the present cases the lower court granted appellant’s motions to dismiss the charges of dealing in stolen property on double jeopardy grounds. Specifically the court found that the evidence presented by the state in the trial of the earlier case placed appellant in jeopardy as to all of the money orders; the only evidence that would differ in this case would be the factual presentation of the locations and parties to whom appellant disposed of the property; and the evidence presented in the earlier trial could have established that the crime of dealing in stolen property was complete prior in time to the attempt to dispose of said property. We affirm.

Because of the evidence presented in AS-292, the first trial, and the way in which the prosecutor relied upon that evidence in his arguments, the jury in that case may have found appellant guilty of dealing in stolen property based on his initial purchase of all of the money orders from the prostitute in Jacksonville with knowledge that they were stolen. Prosecution for the charges of dealing in stolen property under the present informations would constitute a second trial for the same offense, in that no proof of an additional fact would be required, see Bell v. State, 437 So.2d 1057 (Fla.1983); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.1981); Ziegler v. State, 385 So.2d 1168 (Fla. 1st DCA 1980), and 21 Am.Jur.2d “Criminal Law” § 266. The same evidence upon which appellant was convicted of dealing in stolen property in the first case would suffice to convict him of the charges in the present case of dealing in stolen property.

It is important to note that this opinion is only based on the narrow circumstances of this particular case given the evidence presented and the arguments made at the first trial. Broad implications with regard to the definition of trafficking or the offense of dealing in stolen property should not be drawn from this decision.

AFFIRMED.

ERVIN, C.J., and MINER, CHARLES E., Jr., Associate Judge, concur.

      . Section 812.012(7) provides:
      “Traffic means:
      (a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
      (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.


author: OTT, Chief Judge.

text:
    Leonard A. SANTOPOLO, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2442.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      William T. Fussell, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for respondent.
   OTT, Chief Judge.

In this petition for writ of certiorari, petitioner contends that the trial court’s order denying his request for an adversary preliminary hearing represents a departure from the essential requirements of the law. He cites Florida Rule of Criminal Procedure 3.133(b)(1) and Bell v. State, 361 So.2d 818 (Fla. 4th DCA 1978), in support of his position. We disagree and therefore deny the petition but do so with opinion.

Petitioner was arrested on August 30, 1983. He remained in custody for twenty-one days without an information or indictment being filed. Petitioner’s motion for an adversary preliminary hearing was granted. Prior to the actual hearing, petitioner was released on a surety bond in the amount of $100,000. At the beginning of the scheduled hearing, the state attorney declined to proceed with the adversary preliminary hearing. However, the state attorney did establish that an information had been filed against petitioner after the twenty-one-day period and before the hearing on petitioner’s motion for an adversary preliminary hearing. The trial court thereafter ordered petitioner released on his own recognizance.

Petitioner maintains that under the facts of this case he is entitled to an adversary preliminary hearing at which the state must present all witnesses which will be material to this case. We disagree.

Under rule 3.133(b)(1), a defendant is entitled to an adversary preliminary hearing on any felony charge pending against him where he has not been charged with an information or indictment within twenty-one days from the date of his arrest or service of the capias. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding. Id. In cases where probable cause to believe that an offense has been committed and that the defendant committed it is not established and an information has been filed after the twenty-one-day period, the magistrate shall release the defendant on his own recognizance subject to the condition that he appear at all court proceedings. Fla.R.Crim.P. 3.133(b)(5). The defendant could also be released under a summons to appear before the appropriate court at a time certain. Id.

In the instant case, after the prosecutor chose not to proceed with the adversary preliminary hearing, the trial court granted defendant all available relief by releasing him on his own recognizance. Indeed, defendant could have realized no greater relief had the prosecutor presented insufficient proof of probable cause. Because the relief sought has been realized, we find that the trial court’s decision not to reset a date for another adversary preliminary hearing at which the state would be required to present all material witnesses did not amount to a departure from the essential requirements of the law.

We believe that our holding does not conflict with the court’s decision in Bell v. State, supra. There, an information was filed on the twenty-third day after the defendant’s arrest. Although a nonadver-sary preliminary hearing had previously been held and the defendant was released on bond, he demanded an adversary preliminary hearing. Reluctantly, the court agreed that he was entitled to such a hearing. We believe that the distinguishing factor between Bell and the instant case is that Bell, who was released on bond, could possibly realize some gain if a lack of probable cause were found at the adversary preliminary hearing, i.e., he could be released on his own recognizance.

For the foregoing reasons, defendant’s petition for writ of certiorari is hereby DENIED.

BOARDMAN and LEHAN, JJ., concur.


text:
    Eugene MONSON, Appellant, v. STATE of Florida, Appellee.
    No. AV-169.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.
    Eugene Monson, pro se, for appellant.
    No response for appellee.
   PER CURIAM.

Monson appeals the order of the trial court denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm in part, reverse in part, and remand for an evidentiary hearing.

Appellant’s pro se 3.850 motion and memorandum of law raised several issues, however, only issues one and two are facially sufficient. In issue one, Monson alleges ineffective assistance of counsel based on his trial counsel’s conflict of interest. Appellant alleges that the Public Defender’s Office was initially appointed to represent both Monson and a codefendant, Donnie Washington. Because a conflict of interest existed between appellant and Washington, the trial court eventually appointed Russell Cole to represent appellant. Monson alleges, however, that Cole is also an Assistant Public Defender and, further, that Cole also represents the owner of the liquor store that appellant allegedly robbed.

Ineffective assistance of counsel is a well-recognized ground for relief under Rule 3.850. See, e.g., Brown v. State, 409 So.2d 129 (Fla. 5th DCA 1982). The Sixth Amendment right to the assistance of counsel contemplates legal representation that is effective and unimpaired by the existence of conflicting interests being represented by a single attorney. Foster v. State, 387 So.2d 344 (Fla.1980). Where a conflict of interest exists between two defendants, the defendants should not be represented by Assistant Public Defenders in the same circuit. Babb v. Edwards, 412 So.2d 859 (Fla.1982).

In issue two, Monson alleges that the prosecutor in this case knowingly and willfully used perjured testimony in order to obtain appellant’s conviction. The allegations of the motion and attached affidavits indicate that appellant’s co-defendant, Washington, was told by the prosecutor that he (Washington) would receive a five year sentence if he changed his story to falsely inculpate Monson or, conversely, a life sentence if he did not.

The willful use of false testimony upon material matters from prosecution witnesses where the prosecutor knows that the testimony is perjured constitutes a recognized ground for relief under Rule 3.850. Porterfield v. State, 442 So.2d 1062 (Fla. 1st DCA 1983); Hernandez v. State, 368 So.2d 606 (Fla. 3d DCA 1979).

The trial court denied appellant’s 3.850 motion without an evidentiary hearing. The trial court’s order denying appellant’s 3.850 motion states that the motions, files and records in the case conclusively show that appellant is entitled to no relief. The trial court, however, did not attach to its order, as required by Rule 3.850, those portions of the files and records which conclusively show that appellant is entitled to no relief. Upon being given an opportunity to do so by this court, the trial court did not produce such portions of the files and records. Therefore, since issues one and two of appellant’s motion allege facts which, if true, would entitle appellant to relief, the trial court’s order is reversed and the cause remanded for an evidentiary hearing on these two issues. The trial court’s order is affirmed insofar as it denies relief based on appellant’s other issues, since these allegations are facially insufficient.

AFFIRMED in part, REVERSED in part, and REMANDED.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    INDUSTRIALES NICARAGUENSES CHIPIRUL, S.A., Appellant, v. SWITZERLAND GENERAL INSURANCE CORPORATION OF NEW YORK, Appellee.
    No. 82-752.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.

      C. Douglas Skinner, Miami, for appellant.
    Hayden & Milliken and John D. Kallen, Miami, for appellee.
    Before BARKDULL and HUBBART and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a final summary judgment for the defendant insurer in an action by the plaintiff insured for recovery under a marine insurance policy for the loss of a cargo of peanuts shipped to Nicaragua. The trial court entered final summary judgment for the defendant insurer Switzerland General Insurance Corporation of New York on the sole ground that the plaintiff insured Industriales Nicaragüens-es had impaired the insurer’s subrogation rights in violation of clause 33 of the marine insurance policy by failing to file suit against a potential third-party tortfeasor, the shipping line, for the loss of the cargo of peanuts. The plaintiff insured appeals.

We conclude that the plaintiff insured did not impair the subrogation rights of the defendant insurer under the subject marine insurance policy for two reasons. First, the failure to file suit against the shipping line, without more, was not an affirmative act of the insured which constituted an impairment of subrogation rights. See, e.g., Insurance Co. of North America v. Newtowne Manufacturing Co., 187 F.2d 675, 684 (1st Cir.1951) (Magruder, C.J.); Schmer v. Hawkeye-Security Insurance Co., 194 Neb. 94, 230 N.W.2d 216, 218 (1975). Second, the insurer denied coverage under the policy, made no request of the insured to file suit against the shipping line, and therefore, asserted no subrogation rights which were capable of being impaired. See, e.g., Meredith v. The Ionian Trader, 279 F.2d 471 (2d Cir.1960); Insurance Co. of North America v. Newtowne Manufacturing Co., supra, at 685; Fireman’s Fund Insurance Co. v. Rojas, 409 So.2d 1166 (Fla. 3d DCA 1982); Indiana Insurance Co. v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978).

The final summary judgment under review is reversed and the cause is remanded for further proceedings.


text:
    John Lewis BIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1221.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Bennett H. Brummer, Public Defender and Lionel Barnet and James H. Greason, Sp. Asst. Public Defenders, for appellant.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Ferguson v. State, 417 So.2d 639 (Fla.1982); Ferguson v. State, 417 So.2d 631 (Fla.1982); Shriner v. State, 386 So.2d 525 (Fla.1980); Brown v. State, 381 So.2d 690 (Fla.1980).


text:
    WINCHESTER CORPORATION, Appellant, v. MIAMI FREE ZONE CORPORATION, Appellee.
    No. 83-68.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Alan E. Dubow, Coconut Grove, for appellant.
    Sage, Gray, Todd & Sims and Robert W. Turken, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This is an appeal by defendant/counter-claimant from an order dismissing its three-count second amended counterclaim, without leave to amend.

The first count of the second amended counterclaim alleged that the appellee, landlord, breached a number of obligations which appellee allegedly owed to appellant, tenant. It was further asserted that the alleged breach of appellee’s obligations caused appellee to become unjustly enriched. Count two alleged tortious interference with appellant’s contractual and business relationships with its subtenants. Count three was based on alleged misrepresentation and fraud in the inducement to appellant’s execution of the lease agreements.

It is appellant’s contention that the trial court erred in dismissing its counterclaim for failure to state a cause of action and in refusing to allow appellant leave to amend.

We find no error in the court’s dismissal with prejudice of the second count of the second amended counterclaim for failure to state a cause of action since it is clear that the deficiencies in this count cannot be cured. However, the dismissal as to counts one and three should have been entered with leave to amend. Winfield v. Noe, 426 So.2d 1148 (Fla. 3d DCA 1983); Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982); Wiggins v. Tart, 407 So.2d 1094 (Fla. 1st DCA 1982); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980).

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


text:
    Reuben D. PLASENCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-297.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Bennett H. Brummer, Public Defender, and Arthur L. Rothenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The appellant was charged by information with second degree murder. A jury found him guilty as charged. He was sentenced to fifteen years in the state prison.

The sole point raised by appellant in this appeal is whether the trial court erred in denying appellant’s motions for directed verdict at the conclusion of the state’s case and for judgment of acquittal because of insufficiency of the evidence.

After carefully considering the point on appeal in the light of the record and briefs, we have concluded that no reversible error has been demonstrated. See: Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA), pet for rev. denied, 407 So.2d 1105 (Fla.1981); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976); Bolin v. State, 297 So.2d 317 (Fla. 3d DCA), cert. denied, 304 So.2d 452 (Fla.1974); Gil v. State, 266 So.2d 43 (Fla. 3d DCA), cert. denied, 271 So.2d 139 (Fla. 1972).

Therefore the judgment and sentence are affirmed.

Affirmed.


text:
    Clifford CLINE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-372.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg and Michael Neimand, Asst. Attys. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant appeals from the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

The defendant was convicted and sentenced as follows: (1) second degree murder — life imprisonment; (2) attempted second degree murder — five years imprisonment to run consecutively to the life sentence; and (3) unlawful possession of a firearm while engaged in a criminal offense — fifteen years imprisonment to run concurrently with the life sentence. The trial judge also imposed three-year minimum mandatory sentences on both the murder and attempted murder convictions. Cline challenges the minimum mandatory sentences as well as the sentence for possession of a firearm.

The minimum mandatory sentences must be vacated because the verdict form relating to the second degree murder and attempted second degree murder failed to indicate whether the defendant possessed a firearm. See Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982); Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). Additionally, applying the single transaction rule which was in effect at the time the crime was committed, State v. Munford, 357 So.2d 706 (Fla.1978), we conclude that the sentence for the unlawful display of a firearm must be vacated. Johnson v. State, 366 So.2d 418 (Fla.1978).

Reversed and remanded with directions to vacate the minimum mandatory sentences as well as the sentence for unlawful possession of a firearm.


text:
    Leon KAPLAN and Ronne Kaplan, Appellants, v. OCEAN GRANDE HOTEL, INC., Stephen Goldenberg, Marsha Goldenberg, Harry Abushewitz, and Channa Abushewitz, Appellees.
    No. 83-991.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.

      Terrence E. Rosenberg, Miami, for appellants.
    Hoffman, Larin & Feinsmith and Richard Larin, Fort Lauderdale, for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We find no error in the trial court adjudicating that it would be inequitable to foreclose a mortgage due to the conduct of the parties. See: Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975). However, we modify the final judgment by amending paragraph 4 thereof, to recite the date January 22, 1983 rather than February 22, 1983, (the parties having conceded that this date is erroneous).

Affirmed.


text:
    Francis DeLAURIER and Donald Wieber, Appellants, v. SCHOOL BOARD OF DADE COUNTY, Florida, Appellee.
    Nos. 83-1028, 83-1029.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Joseph C. Segor, Miami, for appellants.
    Frank A. Howard, Jr. and Phyllis 0. Douglas, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ,
   PER CURIAM.

The orders of the appellee, the School Board of Dade County, Florida, dismissing the appellants from their employment with the Board are affirmed. The Board was free to reject the hearing officer’s conclusions of law, see Alles v. Department of Professional Regulation, Construction Industry Licensing Board, 423 So.2d 624 (Fla. 5th DCA 1982), that the appellants’ actions did not constitute immorality and misconduct in office where the hearing officer’s findings of fact clearly supported contrary conclusions. See Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981); Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975).

Affirmed.


text:
    Ted DOBBS, Appellant, v. Jules GORLITZ, Appellee.
    No. 83-1148.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Scherman & Zelonker, and Regina Zel-onker, Hialeah, for appellant.
    Frank, Strelkow & Gay, North Bay Village, and Michael Frank, Miami, for appel-lee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Where uneontroverted affidavits and deposition testimony submitted in support of a summary judgment motion showed that the defendant, a business owner, had in 1981 renewed an earlier oral promise to plaintiff, his employee, to give plaintiff ownership in the business upon defendant’s retirement in exchange for the plaintiff remaining in his employ, and that within the year defendant retired from the business and sold all his stock in the business to a third party, defendant had not demonstrated conclusively that plaintiff’s cause of action for breach of contract was barred by the statute of frauds. Summary judgment was, therefore, inappropriate. There was nothing in the terms of the oral agreement to show that it could not be performed within a year. Further, the fact that the defendant did sell his business interest within a year of the agreement is a strong factor weighing against construction of the agreement as one within the statute of frauds. See Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937); Central National Bank of Miami v. Central Bancorp, Inc., 411 So.2d 358 (Fla. 3d DCA 1982).

Reversed and remanded for further proceedings.


text:
    In re The Marriage of Wendy MATHERS, Appellant, v. Harold T. MATHERS, Appellee.
    No. 83-2114.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Piken & Snyder, Orlando, for appellant.
    Pasco & Krentsa, Hallandale, for appel-lee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order modifying the custody status of the minor child from the mother to shared parental responsibility pursuant to section 61.13, Florida Statutes (1982), upon the authority of Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983). As in Alonso there is no showing of a material change in circumstances requiring modification.

Reversed.


text:
    Willie Frank BOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1970.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Laura Sellers and Robert L. Bogen, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have carefully considered the five points appellant has presented on this appeal. While some of the points involve apparent error, the error either was not adequately preserved or is not of such magnitude as to require reversal.

Accordingly, the judgment appealed from is affirmed.

DOWNEY, LETTS and DELL, JJ., concur.


text:
    Lewis A. GERSTENFELD, Appellant, v. STATE of Florida, Appellee.
    No. 83-732.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Baker v. State, 438 So.2d 905 (Fla. 2d DCA 1983).

GLICKSTEIN, HURLEY and DELL, JJ„ concur.


text:
    FOGARTY VAN LINES, INC., Truck Insurance Exchange, and Eddie Grimes, Appellants, v. Melissa R. KELLY, Appellee.
    No. 83-1023.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1984.

      Melvyn Trute and Marvin L. Moss, Bay Harbor Islands, for appellants.
    W. James Kelly, Lakeland, for appellee.
   OTT, Chief Judge.

In this interlocutory appeal, appellants contend that the trial court erred in denying their motion to dismiss on the ground of improper venue. We agree and reverse.

Appellee filed a complaint against appellants in Polk County Circuit Court alleging that appellants were responsible for the loss and destruction of her personal property during a move from Lakeland, Florida to Charleston, West Virginia. Appellants moved to dismiss the case for improper venue, asserting that appellant Eddie Grimes was a resident of Pinellas County, that appellant Fogarty Van Lines, Inc., maintained its offices in Hillsborough County, that the cause of action, if any, accrued in Charleston, West Virginia, and that, therefore, venue was improper in Polk County. In an order entered March 30, 1983, the trial court denied appellants’ motion to dismiss for improper venue, granted appellants’ motion to dismiss for failure to state a cause of action, and allowed appel-lee twenty days to amend her complaint. In her amended complaint, appellee added a count based on 49 U.S.C. 11707, a federal statute governing the liability of a common carrier under receipts and bills of lading where a loss or injury to property occurs on its line or route.

Appellee tacitly admits that venue in Polk County was improper under the original complaint, arguing instead that the point on appeal is moot because the original complaint was dismissed and an amended complaint has been filed. While the point on appeal may be technically moot, we will review it nonetheless, as a judgment that this court might enter would affect the rights of the parties as they stand at the time the case is reviewed. See Dehoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (Fla. 1943). Moreover, a decision on the propriety of venue in Polk County under the amended complaint at this time will hasten speedy disposition of this litigation by removing the possibility of another interlocutory appeal on the question of venue.

49 U.S.C. 11707(d)(1) provides:

(d)(1) A civil action under this section may be brought against a delivering carrier (other than a rail carrier) in a district court of the United States or in a State court. Trial, if the action is brought in a district court of the United States is in a judicial district, and if in a State court, is in a State, through which the defendant carrier operates a railroad or route.

Assuming arguendo that the point on appeal would be reviewed, appellee contends that the count based on 49 U.S.C. 11707 places venue over the entire controversy in Polk County. In particular, she relies on the fact that appellant Fogarty Van Lines operates a route in Polk County. Although we agree with appellee’s contention that this lawsuit may be brought in any county wherein venue for one of the causes of action is properly laid, section 47.041, Florida Statutes (1981), we disagree with her conclusion that the federal count places venue in Polk County.

We construe 49 U.S.C. 11707(d)(1) to place jurisdiction over a matter brought pursuant to this statute in either federal court or state court at the election of the plaintiff. However, an election to pursue the claim in state court does not obviate the need for compliance with the state’s venue statutes. Indeed, as noted in Central of Georgia Ry. v. Touchstone & Wilbanks, 148 Ga. 861, 98 S.E. 485, 486 (1919), when construing 49 U.S.C. 20(11) (the predecessor statute to 49 U.S.C. 11707), the statute “does not purport to deal with the venue of actions to enforce such liability; and the question of venue, which is determined by state laws, is not affected thereby.”

A review of the complaint and amended complaint reveals that venue is properly laid in either Pinellas County under section 47.021, Florida Statutes (1981) (because appellant Grimes resides in Pinellas County), or Hillsborough County under section 47.051, Florida Statutes (1981) (because appellant Fogarty Van Lines maintains its offices in Hillsborough County). Accordingly, we reverse the trial court’s order denying appellants’ motion to dismiss for improper venue and remand with instructions for the trial court to transfer the action to a proper county in accordance with Florida Rule of Civil Procedure 1.060(b).

REVERSED and REMANDED.

RYDER and LEHAN, JJ., concur.


author: CAMPBELL, Judge.

text:
    Lenora FEILER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1098.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1984.
    Judge C. Luckey, Jr., Public Defender and Gary G. Graham, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Dean C. Kow-alchyk, Asst. Atty. Gen., Tallahassee, for appellee.
   CAMPBELL, Judge.

Appellant/patient, Lenora Feiler, appeals the order involuntarily committing her to a mental institution. The involuntary placement hearing involved in this appeal occurred immediately prior to the hearing resulting in the involuntary commitment appealed and referred to in Chalk v. State, 443 So.2d 421 (Fla. 2d DCA 1984), and to some extent, could be considered a companion to that appeal.

It was in this proceeding below, to which reference is made in Chalk, that appellant’s counsel stipulated to the qualifications of a mental health professional who testified as to appellant’s illness. That issue is therefore not before the court in this case. Appellant here does, however, as did the appellant in Chalk, complain of the denial of her counsel’s request for closing argument.

On that point, for the reasons stated in Chalk, we reverse and remand for a new hearing when appellant shall be given an opportunity to present a closing argument. Meanwhile, if appellant continues to be involuntarily committed, she shall remain in custody pending the outcome of the new hearing.

Reversed and remanded.

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


author: WIGGINTON, Judge.

text:
    James Arthur TOWNSLEY, Appellant, v. STATE of Florida, Appellee.
    No. AR-65.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.

      Judith J. Dougherty, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals his conviction, after trial by jury, of dealing in stolen property in violation of section 812.019, Florida Statutes. The evidence does not support a finding that appellant was trafficking in or endeavoring to traffic in stolen property, as charged under that statute. We reverse.

The evidence at trial showed that on February 25 and 26, 1982, appellant met with several other men (who were his codefend-ants at trial) in Tallahassee, Florida, for the purpose of taking possession of a 1982 Mercedes Benz, worth approximately $44,-000, which had been stolen in Texas a day or two earlier. The evidence supports a conclusion that appellant paid $10,000 in cash plus transfer of his 1977 Cadillac, which was in bad repair and worth only approximately $2,000, in exchange for the Mercedes.

The evidence was sufficient to create an inference that appellant was guilty of theft, in violation of section 812.-014, Florida Statutes, since it showed that appellant purchased the Mercedes at a price substantially below the fair market value and that the low purchase price was not satisfactorily explained. § 812.022(3), Fla.Stat. However, appellant was not charged with theft under section 812.014, but instead he was charged under section 812.019 with “dealing in stolen property.” Under that statute: “(1) Any person who trafficks in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree _” Section 812.012(7) defines “traffic” to mean:

(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property. (Emphasis added.)

Absolutely no evidence was presented at trial to show that appellant was trafficking in or endeavoring to traffic in the stolen property. The only reasonable inference from the evidence presented is that appellant was purchasing the Mercedes for his own personal use and did not intend to sell, transfer, or otherwise dispose of it. Thus, as a matter of law, appellant cannot be convicted of dealing in stolen property under section 812.019, Florida Statutes. Therefore, the trial judge erred in denying appellant’s motion for judgment of acquittal with respect to that charge. The state’s response that a reasonable inference to be adduced from the evidence is that some day in the future appellant will turn over his used Mercedes to some person, as he did the Cadillac, and, in that manner, he was trafficking, is unpersuasive. We decline to so contort the definition of “trafficking.”

REVERSED and REMANDED to the trial court for entry of an order granting appellant’s motion for judgment of acquittal on the charge of dealing in stolen property. .

LARRY G. SMITH and NIMMONS, JJ., concur.


author: MILLS, Judge.

text:
    Steven SNOW, Appellant, v. STATE of Florida, Appellee.
    No. AR-199.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Snow appeals his sentence for kidnapping and sexual battery. He contends the trial judge erred in retaining jurisdiction without stating the reasons for doing so with individual particularity as required by Section 947.16(3)(a), Florida Statutes (1981). Because the alleged error was not raised below, we decline to consider it on direct appeal. Walker v. State (Fla. 1st DCA 1983) [8 FLW 2896].

The appeal is dismissed without prejudice for Snow to raise this issue by motion pursuant to Florida Rule of Criminal Procedure 3.850.

SHIVERS and ZEHMER, JJ., concur.


author: DAUKSCH, Judge. SHARP, Judge,

text:
    STATE of Florida, Appellant, v. Muriel E. STEWARTSON, Appellee.
    No. 82-1626.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P.A., Winter Park, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order granting a motion in limine. The question on appeal is whether a letter written to one’s spouse falls within the marital communications privilege even though the letter was intended to be delivered after the witness’ death?

In a rather macabre fashion the state seeks to introduce into evidence a suicide note written by appellee to her husband just before she took a gun and shot herself in the chest intending to kill herself. Having lived through this ordeal she faces another in the criminal court for her alleged theft and forgery violations. The letter contains what the state maintains are admissions regarding crimes.

The trial court granted a motion in limine prohibiting the state from introducing the letter in evidence.

The husband-wife privilege statute is found in the Florida Evidence Code, Section 90.504(1), Florida Statutes (1981):

A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

There are no Florida cases precisely on point so we are left to apply our definition to the statute, which statute is rather clear in its wording. But the facts of this ease indicate that a bit more could have been put into the statute to cover this ease.

It is clear that if one spouse communicates to another during the marital relationship then it’s a privileged communication, with limited exceptions. But what if the spouse sends the communication during the relationship intending it to be received afterwards? That’s the problem; is it the time of sending which counts, or the time of intended receipt, or actual receipt? The problem is exacerbated by the police having intercepted the communication when the policewoman opened the sealed envelope in order to read the note. Does that interception take the communication out of privilege?

As far as the legality of the search and seizure is concerned we do not need to decide that issue at this time because that point is not raised on appeal. Although the trial court denied the suppression of the letter as evidence because it found no constitutional violation, the appellee has chosen not to raise that issue at this time. She voluntarily dismissed her cross-appeal.

The cases cited by-appellant are to no avail because, for instance, State v. Norris, 352 So.2d 875 (Fla. 3d DCA 1977) has to do with a conversation had before the parties were ever married. The other cases have to do with the “interception” concept whereby one cannot object to the introduction of communications when he sends it or leaves it available for anyone’s discovery. Here the letter was written during the marriage and left in the home, in a sealed envelope and addressed to the husband. It is quite clear the writer took reasonable precautions to avoid having the note read by anyone but her husband (intended widower). As a matter of fact, but not of particular importance, we note that the “discovery” of the note was long after appellee had been taken from the home and the gun and shell casing had been secured by the police. The note was not found in the “crime scene” area, — so testified the officer who seized it. Little more than curiosity could have led the policewoman to open the envelope and read the letter. Of course hindsight shows the intuition might have paid off.

Appellee’s caselaw citations are of little value. Brown v. May, 76 So.2d 652 (Fla.1954) has to do with a communication completed during marriage but offered in evidence after termination of the marriage. This is hardly what occurred here. The other cases have to do with the fourth amendment, which is not raised in this appeal.

Only Mercer v. State, 40 Fla. 216, 24 So. 154 (1898) is of help. This case says that the marital privilege should be most liberally construed and “includes any information obtained by either [husband or wife] during the marriage, and by reason of its existence.” 24 So. at 157.

We have found other cases on point, from other states, and recognize the compelling logic in both of them. See Georgia International Life Insurance Company v. Boney, 139 Ga.App. 575, 228 S.E.2d 731 (1976) and In the Matter of Vanderbilt v. Hickey, 57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378 (1982). Additionally, in Truelsch v. Northwestern Mutual Life Insurance Company, 186 Wis. 239, 202 N.W. 352, 38 A.L.R. 914 (1925), the court held that a letter written to a wife by her husband, who committed suicide, was not privileged because the communication was not made and completed during marriage. We do not reach that point because there was no death in this case. In this case the communication was sent and received during the marriage and it is privileged.

AFFIRMED.

SCOTT, Associate Judge, concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

This case is in point with Mercer v. State, 40 Fla. 216, 24 So. 154 (Fla.1898), and we should affirm on its authority. The parties in this case were married when the note was written, and when it was intercepted, and at the time the privilege was asserted. Whether the communicating spouse intended the note to be received after death is not relevant. But, whether the privilege is available for a written communication made while spouses are married, but which is received or intercepted after the death of the sender is a different question. After death or divorce, the justification for the privilege — maintaining peace and harmony between marital parties, Mercer, 24 So. at 157 — pales considerably; and the need for the excluded relevant testimony in the interest of doing justice may be compelling in another case.

      . See Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934).


text:
    Orlando LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-786.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence. However, the portions of the trial court’s order requiring appellant to pay $10.00 pursuant to section 960.20 (Crimes Compensation Trust Fund), $10.00 pursuant to section 775.0835 (optional fine for the Crimes Compensation Trust Fund), $2.00 pursuant to section 943.25(4) (Law Enforcement Training and Correctional Officer Training Trust Fund), and courts costs in the amount of $102.00 are stricken since the trial court adjudged appellant insolvent prior to trial and appointed the public defender to represent him. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983) (question certified).

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


text:
    Mildred A. Willis ROSENTHAL, Appellant, v. Jerry L. FORD, Appellee.
    No. 83-927.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.

      Ray Graham, Sarasota, for appellant.
    Anthony J. Abate and Ronald L. Collier of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellee.
   CAMPBELL, Judge.

Appellant, Mildred A. Willis Rosen-thal, seeks review of a final judgment dissolving her partnership with appellee and disposing of the partnership assets. The partnership was primarily a cattle raising operation conducted on appellant’s ranch in DeSoto County. Among other things, appellant alleged in her complaint for dissolution of the partnership and an accounting, that appellee had removed partnership cattle from the ranch and failed to account for them. The case proceeded to a nonjury trial. Prior to the conclusion of the trial, the parties, through their attorneys, stipulated to a consent judgment. While the judgment itself stated that it was entered upon the evidence presented, it is clear from the trial court’s subsequent order denying appellant’s motion for corrected judgment and motion for new trial, that the judgment was entered as a result of being “settled by a consent and compromise agreement after a full day of testimony.” While appellant’s motions for relief from judgment were styled “Motion for New Trial” and “Amended Motion for New Trial,” it is clear to us that they qualify as a timely filed motion to vacate judgment under Florida Rule of Civil Procedure 1.540(b)(3).

The essential allegations of those motions are that appellee falsely and fraudulently represented that all of the partnership cattle were located on appellant’s lands. The distribution of partnership assets provided for in the final judgment called for appellant to “be entitled to all of the partnership assets located on the real property owned by her,” and certain specifically enumerated “articles of personal property of the partnership ... not located on the real property of” appellant. In turn, appellant was to pay to appellee the sum of $17,500, and appellee was to receive all partnership assets not located on the property of appellant. The final judgment does not refer to “cattle.” However, appellant alleges that had appellee not falsely represented that all partnership cattle were located on appellant’s property, she would not have been induced to consent to the entry of judgment. The effect of her allegation is that the intent of the settlement was for her to receive all of the partnership cattle, that it was represented to her that all of the cattle were on her property, and the judgment, therefore, contained that qualifying language that the assets she was to receive were located on her property.

Nevertheless, she specifically consented in the pleadings to receive only the partnership assets located on her property, which she refers to as “cattle,” but alleges her actual intent was to receive all the cattle of the partnership wherever located. She further alleges she relied upon appellee’s unverified representations as to the location of the cattle for the purpose of settling the litigation, when the heart of the litigation itself was centered around appellee’s alleged misrepresentations regarding the whereabouts of the partnership assets. Based upon the sparse record before us, which reveals only those bare allegations, it is difficult for us to grasp the full thrust of the merits of appellant’s motion to vacate. But, the merits of the case are not for our consideration.

Appellant has, in a timely motion seeking relief from judgment, made allegations of fraud and misrepresentation on the part of appellee as an inducement to her consent to the terms of the final judgment. The trial court denied the motion without holding a hearing thereon. We have absolutely no record before us except for the pleadings below. The credibility of appellant’s allegations should only be determined by the trial court after an evidentia-ry hearing thereon.

We, therefore, reverse the trial court’s denial of appellant’s post-judgment motions for relief and remand for hearings thereon in order for the trial court to determine whether or not there was such fraud and/or misrepresentation by appellee to justify vacating the final judgment. The final judgment below is not disturbed by this court at this time. If either party is aggrieved by the actions of the trial court regarding the motions for relief from judgment, they must appeal anew any order entered by the trial court.

Reversed and remanded in accordance with instructions herein.

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


text:
    Bobby Joe LOLLAR, Appellant, v. STATE of Florida, Appellee.
    No. 83-1263.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Pursuant to negotiations, appellant agreed to plead nolo contendere and the state agreed to remain silent at appellant’s sentencing hearing. The state failed to keep the bargain. Appellant’s motion to withdraw his plea was denied. Instead, a new sentencing hearing was scheduled before a successor judge. We reverse.

A defendant should be allowed to withdraw his plea when the terms of a plea bargain are not honored. See, e.g., Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979) (trial judge declined to honor plea bargain); Wood v. State, 357 So.2d 1060 (Fla. 1st DCA 1978) (state violated agreement to recommend concurrent sentences). Vetter v. State, 425 So.2d 575 (Fla. 2d DCA 1982), relied on by the trial judge, is factually distinguishable. There, the defendant moved to vacate his sentence only.

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

DANAHY and CAMPBELL, JJ., concur.


text:
    Terry D. HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2162.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
   PER CURIAM.

Defendant appeals from the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

In his motion, defendant claimed he provided trial counsel with the names and addresses of two potential alibi witnesses. Defense counsel allegedly failed to contact these witnesses, and failed to investigate the circumstances of the burglary. If defendant’s allegations are true, the trial counsel’s failure to investigate two potential alibi witnesses might constitute a substantial omission by defense counsel, and appellant might therefore be entitled to relief. Knight v. State, 394 So.2d 997 (Fla. 1981). The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute the allegations.

Accordingly, the trial court’s denial of defendant’s motion is reversed and the case is remanded to the trial court. On remand, the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations presented in the motion. Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983).

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


text:
    W.T. CREEL, Appellant, v. AFFORDABLE HOMES OF PENSACOLA, INC., et al., Appellees.
    No. AP-250.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.

      Joe G. Hosner, Pensacola, for appellant.
    R. Brownlee Eggard, Pensacola, for ap-pellees.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Appellee filed a motion to dismiss this appeal when appellant’s brief was almost three months overdue. Appellant was directed to show cause why the motion to dismiss should not be granted. In response, appellant filed a motion for extension of time. In the motion appellant’s counsel explained that he had been out of the office or unable to work for the past 30 days due to an emergency medical situation involving a family member and extended litigation in federal court. Counsel asked for 15 days from the date of service of the motion in which to file the initial brief, and certified that he had not consulted opposing counsel, but by service of the motion was doing so and requesting opposing counsel to either state he had no objection or file a proper objection.

Appellant’s motion for extension of time did not comply with the requirements of Rule 9.300(a) and did not explain why appellant had failed to either timely serve the initial brief or move for an extension of time. Further, appellant failed to file the initial brief within the 15 day period requested in the motion for extension of time. Therefore, in accordance with Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 1978), counsel for appellant, Joe G. Hosner, was ordered to appear before the court and show cause why he should not be held in contempt and punished accordingly for his disregard of the appellate rules and his failure to properly prosecute the appeal. Counsel was also ordered to serve and file the initial brief within 10 days.

The initial brief was not filed within 10 days of the order; however, the day counsel appeared before the court, a notice of voluntary dismissal was filed stating the case had been settled.

We find that the counsel’s failure to properly prosecute this appeal in accordance with the appellate rules warrants the imposition of sanctions. See Fla.R.App.P. 9.410. By publication of this order, Joe G. Hosner, Esquire, is publicly reprimanded for his conduct and warned that any future violation of the appellate rules or failure to obey an order of this court, in this or any other case, may result in a contempt proceeding. Counsel’s name will be added to the list of attorneys who have failed to properly practice before this court. See Mitchell v. State, 433 So.2d 632 (Fla. 1st DCA 1983). Further, due to the manner in which this case has been handled, this court will not accept the notice of voluntary dismissal as filed. Counsel is instructed to file another notice of voluntary dismissal, within 15 days, signed by appellant personally. The notice shall contain a paragraph stating that appellant was given a copy of this opinion to read prior to signing the notice of voluntary dismissal.

IT IS SO ORDERED.

MILLS, BOOTH and SHIVERS, JJ., concur.