author: GRIMES, Judge.

text:
    The SCHOOL BOARD OF PINELLAS COUNTY, Florida, a political subdivision, Petitioner, v. STATE of Florida PUBLIC EMPLOYEES RELATIONS COMMISSION and Pinellas County Custodial Union No. 1221 of the International Brotherhood of Firemen and Oilers, Respondents.
    No. 77-1271.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 23, 1978.

      B. Edwin Johnson, Clearwater, and Thomas M. Gonzalez of Shackleford, Farri- or, Stallings & Evans, P.A., Tampa, for petitioner.
    Austin F. Reed and Aurelio Durana, Staff Attys., for William E. Powers, Jr., Gen. Counsel, Tallahassee, for respondent Public Employees Relations Commission.
   GRIMES, Judge.

This is a petition for certiorari seeking review of an order of the Florida Public Employees Relations Commission (PERC) which found that petitioner (School Board) had committed an unfair labor practice by refusing to bargain with respondents (union).

The union filed a petition for certification as the bargaining agent of certain employees of the School Board. Following hearings, PERC entered an order directing an election and defined the bargaining unit eligible to vote as follows:

Included: All eligible employees of the Pinellas County School Board employed in the maintenance, ground maintenance, transportation, plant operations, warehouse and food service departments.
Excluded: All other non-instructional, instructional, and clerical employees and all managerial/confidential employees of the Pinellas County School Board. See Attachment A.

Attachment A referred to various supervisory employment positions. The School Board then submitted to PERC a list of eligible voters. Thereafter, PERC issued an erratum which ordered that Attachment A be amended. The erratum relisted all the supervisory positions which had been on Attachment A, but the word “excluded” was set forth opposite three of these positions. The School Board submitted a new list of eligible voters which included all of the positions listed on the erratum except those designated as “excluded.” Evidently, PERC intended that the three designated supervisory positions should be excluded from the exclusions listed on Attachment A so that only those three positions would be added to the voting list. Be that as it may, those persons named on the School Board’s second list participated in an election on March 11, 1976, and the union received a majority of the votes cast.

The School Board filed objections to the election on March 22, 1976, which were denied by PERC’s chairman on March 31, 1976. On April 12, 1976, the union wrote a letter to the School Board requesting commencement of contract negotiations. The School Board advised the union by letter dated April 27, 1976, that it was appealing the procedures relating to the election and could not recognize the union as the bargaining agent for its employees until a final determination had been made by the courts of Florida. On May 12,1976, PERC’s chairman certified the union as the exclusive bargaining agent for the following unit:

Included: All eligible employees in the maintenance, ground maintenance, transportation, warehouse, plant operations, and food service departments of the Pinellas County School Board.
Excluded: All other non-instructional, instructional, and clerical employees and all managerial/confidential employees of the Pinellas County School Board.

The union again requested bargaining on May 17,1976, but received no response. On June 9,1976, the union filed an unfair labor practice charge against the School Board for refusing to bargain. At a meeting held on August 3, 1976, PERC upheld the chairman’s denial of the School Board’s objections and reaffirmed his certification of the union as the exclusive bargaining agent. This order was not issued in writing until September 7, 1976. In the meantime, on August 5, 1976, the union made another request to the School Board to enter into collective bargaining.

On September 15, 1976, PERC issued its complaint against the School Board for refusing to bargain as alleged in the union’s unfair labor practice charge. Following a hearing before a hearing officer of the Division of Administrative Hearings, the hearing officer made findings of fact and recommended that PERC issue an order directing the School Board to cease and desist from refusing to engage in bargaining. On June 29, 1977, PERC issued its order finding the School Board in violation of Section 447.501(l)(a) and (c), Florida Statutes (1975), for refusing to bargain and ordered the School Board to cease and desist from that practice.

The School Board contends that it cannot be found guilty of having refused to bargain with the union because the union made no request to bargain at a time when the union had been validly certified as the employees’ exclusive bargaining agent. This argument is premised upon the contention that the chairman of PERC had no authority by himself to issue an order of certification and that no request to bargain was made at any time after September 7, 1976, the date upon which PERC formally reaffirmed the certification. The School Board also complains that it should have been permitted to attack the determination of the bargaining unit as a defense to the unfair labor practice charge. Ironically, PERC also made this latter contention in earlier public employee proceedings when it contended that, similar to National Labor Relations Act procedures, an employer should not be entitled to attack the composition of the bargaining unit until it was charged with an unfair labor practice for refusing to bargain. This position was rejected in Panama City v. PERC, 333 So.2d 470 (Fla.1st DCA 1976), and School Board of Sarasota County v. PERC, 333 So.2d 95 (Fla.2d DCA 1976), in which both courts held that a certification following an election constituted final agency action from which a petition for review may be filed in the applicable district court of appeal raising the issue of the appropriateness of the bargaining unit.

We can understand how the School Board legitimately might have wished to question the scope of the bargaining unit in view of the ambiguity inherent in PERC’s erratum. Nevertheless, under the rationale of the cases cited above, it was incumbent upon the School Board to attack the scope of the bargaining unit and to make any other objections it may have had to the election by way of a petition for review of the order of certification. Since this was never done, the propriety of the certification is not before us.

This leaves for determination the question of whether the union ever made a proper request to bargain. The union admits that the School Board cannot be held guilty of the unfair labor practice of refusing to bargain unless the union first made a request to bargain. We agree with the School Board that the chairman of PERC had no authority to act by himself in the issuance of an order of certification. Part II of Chapter 447 refers only to an order of certification as being issued by the Public Employees Relations Commission. Section 447.307, Florida Statutes (1975). The fact that PERC was undercapitalized and that of its members only the chairman was a full-time employee did not give the chairman legal authority to do something the commission as a whole was required to do.

Since all of the union’s requests to bargain predated the commission’s September 7, 1976, order of certification, the final issue to be decided is whether the union’s three previous requests can be deemed to have been continuing in nature such as to place upon the board the obligation to bargain when the commission finally entered its order of certification. The School Board relies upon N.L.R.B. v. Arkansas Grain Corp., 390 F.2d 824 (8th Cir. 1968), which held that a request to bargain which was made when the union did not represent a majority of the employees could not form the basis of a continuing demand which would come into effect at a time when the union later obtained a majority representation. However, the court in that case relied substantially upon the fact that when the union made its request to bargain, its claim of majority representation was not being made in good faith.

In the instant case, the union had substantial justification for believing that it represented the bargaining unit when it made its several requests. At such time as the certification became official, it was obvious that the union continued to maintain a desire to bargain. The School Board had already rejected the union’s request, not because it was awaiting certification by the full commission, but because it hoped to overturn the certification in the courts based upon its contention that the bargaining unit had been improperly determined. On the facts of this case, it would have been a useless gesture for the union to once again request bargaining after the entry of PERC’s September 7, 1976, order. See Local No. 152 v. N.L.R.B., 120 U.S.App.D.C. 25, 343 F.2d 307 (1965); Scobell Chemical Company v. N.L.R.B., 267 F.2d 922 (2d Cir. 1959).

In summary, the proper procedure for the School Board to have followed was to file a petition for certiorari from PERC’s order of certification and at the same time seek a stay of the certification order from either PERC or this court. See Panama City v. PERC, supra. Since PERC’s certification order was not stayed, the School Board was obligated to enter into collective bargaining with the union.

While we have taken issue with some of PERC’s practices and hold the School Board technically guilty of an unfair labor practice for refusal to bargain, we do not wish our opinion to be construed as being critical of any of the parties. The law relating to public employee bargaining in this state is new and complicated. The procedures which must be followed continue to evolve through the rendition of court decisions, and no one should be lightly faulted for having decided to proceed in a particular manner only to later find that the ground rules have received a different interpretation.

The petition for certiorari is denied.

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

      . See Southgate Community Schools, 1970 MERC Lab.Op. 587, in which the Michigan Public Employees Relations Commission refused to permit an attack on the appropriateness of the bargaining unit in an unfair labor practice proceeding because the Michigan courts had ruled that this was a matter which could be earlier raised by an appeal from the commission’s determination of the appropriate unit.

      . We are advised that PERC has now changed its practices whereby the commission rather than its chairman now issues all certifications.

      . We hasten to point out that not every request to bargain made by an employee organization at a time when there is doubt concerning that organization’s right to represent the majority of employees will automatically constitute a continuing demand to bargain. Cf. Hedstrom Company v. N.L.R.B., 558 F.2d 1137 (3d Cir. 1977).


source: Caselaw Access Project

author: PER CURIAM. BOYER, Acting Chief Judge,

license: Public Domain

text:
    Robert R. DEMPSEY, Royall P. Terry, Jr., and Robert W. Wennerholm, Petitioners, v. STATE RETIREMENT COMMISSION and Division of Retirement, Department of Administration, Respondents.
    No. EE-165.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Rehearing Denied Feb. 24, 1978.
    Robert R. Dempsey, Miami, for petitioners.
    L. Keith Pafford, Nancy G. Limman, E. Douglas Spangler, Jr., Tallahassee, for respondents.
   PER CURIAM.

Petition for review is DENIED. See Shields v. Division of Retirement et al., 352 So.2d 1239 (Fla. 1st DCA 1977).

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurring specially.

BOYER, Acting Chief Judge,

concurring specially.

I concur with the majority, but only in deference to the doctrine of stare decisis and the majority of another panel of this court. Had I been a member of the panel considering Shields v. Division of Retirement, cited above, I would have agreed with the well reasoned and articulated dissent authored by Judge Rawls. However, I was not a member of that panel and it is clear that the decision in that case is determinative here.

Further, in my view, Shields v. Division of Retirement and this decision affects a class of constitutional or state officers and passes upon a question of great public interest and should therefore be reviewed by the Supreme Court of Florida pursuant to Art. V, Sec. 3(b)(3) of the Constitution of the State of Florida.


author: PER CURIAM.

text:
    Danny Ray REGISTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-535.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, Stephen 0. Rushing, Tampa, Asst. Public Defender, and Stephannie DaCosta, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

GRIMES, Acting C. J., and SCHEB and OTT, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Ross HALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1135 and 77-1360.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Rehearing Denied Feb. 24, 1978.
    Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals the judgment and sentence entered on his conviction of aggravated assault because the trial court did not instruct the jury on attempted aggravated assault.

The state charged appellant with aggravated assault and obstructing or opposing an officer with violence. At trial, the court instructed the jury on aggravated assault, obstructing a police officer with violence, simple assault, improper exhibition of a firearm, and obstructing a police officer without violence. Defense counsel requested an instruction on attempted aggravated assault. The court denied this request. Thereafter, the jury found appellant guilty of aggravated assault and obstructing an officer without violence.

Under Florida Criminal Procedure Rule 3.510 the trial court must charge on an attempt to commit a crime if such attempt is also an offense, and we cannot consider its failure to do so to be harmless error. Lomax v. State, 345 So.2d 719 (Fla.1977); Irving v. State, 337 So.2d 1014 (Fla.2d DCA 1976).

The judgment and sentence are reversed and the cause remanded for a new trial.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

In a petition for rehearing the state argues that in logic there can be no crime of attempted aggravated assault. See Hutchinson v. State, 315 So.2d 546 (Fla.2d DCA 1976). Thus, if the attempt to commit the crime charged does not constitute a separate offense, it would not be error to fail to give an instruction on attempt. King v. State, 339 So.2d 172 (Fla.1976).

This contention overlooks the fact that in State v. White, 324 So.2d 630 (Fla.1975), our supreme court observed that one whose presence never became known to his intended victim because of an unsuccessful attack from behind could be prosecuted for attempted assault. If attempted assault is a crime, then obviously attempted aggravated assault would also be a crime where a weapon was used. If the attempt to commit the crime charged is a separate offense, it makes no difference that the facts of the case do not warrant the conclusion that the charged crime was not consummated. Lomax v. State, supra.

The petition for rehearing is denied.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Duane DALEY and Dorothy Daley, husband and wife, Appellants, v. AETNA CASUALTY AND SURETY CO., a corporation, and Orange Grove Park Condominium, Inc., a corporation, Appellees.
    No. 77-1347.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    John B. Cechman of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for appellants.
    Kim P. Hart of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   PER CURIAM.

Reversed. See Wills v. Sears Roebuck and Company, 351 So.2d 29 (Fla.1977) and Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975).

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: McCORD, Chief Judge.

text:
    Richard B. SINCLAIR and Tim Starling, as Superintendent of Schools, in and for Baker County, Florida, Petitioners, v. The SCHOOL BOARD OF BAKER COUNTY, a public body corporate, Respondent.
    No. GG-282.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1978.
    C. Graham Carothers and Michael Pearce Dodson of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
    Charles G. Furr and Granvel S. Kirkland of Kirkland & Furr, MacClenny, for respondent.
   McCORD, Chief Judge.

This is a petition for review of final agency action of the School Board of Baker County, Florida, which rejected Baker County School Superintendent Tim Starling’s nomination of Richard B. Sinclair for the position of administrative assistant in charge of finance. We affirm the School Board’s action.

This petition for review results from an impasse between the petitioner Superintendent of Schools and the respondent School Board over the nomination by the Superintendent of co-petitioner Sinclair for the above mentioned position and his rejection by the School Board. The Superintendent contends that the School Board rejected the nomination without good cause. Petitioner took office as Superintendent on January 4, 1977. At that time, the position in question was held by Mrs. Ann Combs who was serving on annual contract as she had for the preceding 14 years under the three immediate predecessors of petitioner. At the May meeting of the School Board, petitioner recommended to the Board that each person on the administrative staff, except Mrs. Combs, be retained for the following year. He unilaterally (without any approval of the Board) prepared a list of qualifications for this position and solicited applications. Petitioner Sinclair responded to the advertisement and was nominated for the position by petitioner Superintendent.

At its meeting of June 6,1977, the Board considered the nomination of petitioner Sinclair. The facts brought out at this meeting show that petitioner Sinclair holds a master’s degree in business administration with a major in accounting but that he has never worked for a school system and has no experience in school finance. From the transcript of the School Board meeting, it appears that the nomination of Sinclair was rejected by the Board because Mrs. Combs had satisfactorily filled the office for the past 14 years and was considered by the Board to be better qualified because of her experience in school finance, and in the office itself than was the Superintendent’s nominee; that she was knowledgeable in school laws pertaining to finance and was well trained in that area. The Board apparently (from all that appears in the record) rejected the nomination when it considered the inexperience of the nominee in matters of school finance in conjunction with the fact that the office was presently occupied by what it considered to be an experienced competent administrator. The Superintendent did not dispute the qualifications of Mrs. Combs.

§ 10 of Art. XII of the Constitution of Florida (1885) provided that the school trustees (predecessors of the school board) would “have the supervision of all the schools within the district.” § 4(b) of Art. IX of the Constitution of Florida (1968) has broadened the school board’s powers in its provision that:

“The school board shall operate, control and supervise all free public schools within the school district . .

Neither of the constitutions contains any provisions regarding the powers of a school superintendent. § 230.23, Florida Statutes (1975), provides the powers and duties of a school board. Under subsection (5) it gives the board power to prescribe qualifications for positions which are to be filled. Under paragraph (a) of subsection (5), the board has authority to:

“Act upon recommendations submitted by the superintendent for positions to be filled and for minimum qualifications for personnel for the various positions.”

Paragraph (b) provides for the appointment of noninstructional personnel and provides that the board shall act on the written recommendations submitted by the superintendent of persons to fill such positions and further provides:

. . The term ‘Act on the written recommendations’ shall be interpreted to mean that the school board must consider the recommendations or nominations of the superintendent submitted as prescribed by law and may not reject such recommendations or nominations except for good cause, and when such rejection is made, a second and if necessary a third recommendation or nomination shall be requested and if made within a reasonable time as prescribed by the school board shall be considered or acted upon as prescribed by law; provided, that if the superintendent shall fail to submit his recommendations as prescribed by law or within a reasonable time as prescribed by the school board, the board shall have the right to nominate or to appoint on its own motion.”

Considering the constitutional and statutory powers of the School Board, the Superintendent acted without authority and usurped the powers of the Board when he unilaterally prescribed the qualifications for the position of administrative assistant in charge of finance. If he proposed to replace Mrs. Combs in this position, he should have requested that the School Board prescribe qualifications for the position if qualifications had not been previously prescribed by the Board. It does not appear from the record that such qualifications had been previously prescribed. Since the Board had not prescribed such qualifications, it acted within its authority in requiring qualifications comparable to those possessed by the present occupant of the position. Such rejection of the Superintendent’s nomination was, therefore, with good cause.

AFFIRMED.

MELVIN, J., and MINER, CHARLES E., Jr., Associate Judge, concur.


author: ALDERMAN, Chief Judge. DREW, E. HARRIS (Ret.), Associate Judge,

text:
    Nolan HURT and Florence Hurt, his wife, Appellants, v. LEATHERBY INSURANCE COMPANY, etc., et al., Appellees.
    No. 76-2468.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Andrew A. Graham and Frank R. Pound, Jr. of Lovering, Pound & Lober, Rockledge, for appellants.
    Barbara Kane of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellees.
   ALDERMAN, Chief Judge.

The determinative issue in this appeal is whether a written release to one or more named joint tort-feasors and to “any other person, corporation, association or partnership which might be charged with responsibilities” also releases any joint tort-feasors not specifically named in the release. We hold that it does.

The plaintiff, Nolan Hurt, sustained personal injuries in an automobile accident when the vehicle in which he was a passenger collided with another vehicle operated by Joan Hatmaker, owned by Vivian Whit-comb and insured by Reserve Insurance Company. Hurt’s claim against Hatmaker and Whitcomb was settled for $10,000, the limits of Reserve’s coverage. Hurt gave a written release specifically naming Hat-maker, Whitcomb and Reserve; in addition, the release provided that “any other person, corporation, association or partnership which might be charged with responsibility” was released. Following the settlement, Hurt filed the present suit against Eugene Robertson, the driver of the automobile in which he was a passenger and Leatherby Insurance Company, Robertson’s insuror. The trial court granted summary final judgment in favor of the defendants based upon the release that had been given in the previous settlement.

Prior to 1957 the rule in Florida was that a release or discharge of one or more joint tort-feasors was a discharge of them all. 28 Fla.Jur., Release, § 19. At the present time, however, Section 768.041, Florida Statutes (1975), provides that a release as to one tort-feasor shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort. Therefore, if Hurt had released only Hatmaker, Whitcomb and Reserve, the defendants Robertson and Leatherby would not have been released. But Hurt’s release was not limited to Hatmaker, Whitcomb and Reserve; it also released “any other person, corporation, association or partnership which might be charged with responsibility.” While Section 768.041 allows a release of less than all joint tort-feasors it does not prevent a person from giving a release that discharges the liability of all who might be charged with responsibility.

Hurt’s release discharges all tort-feasors. If he had intended to limit the release to Hatmaker, Whitcomb and Reserve it would have been a simple matter for him to have deleted the all inclusive language. Hurt argues, however, that he made a unilateral mistake and that he really didn’t intend to release everybody. This is not sufficient. The clear and unambiguous terms of a release may not be changed upon a claim of unilateral mistake where that mistake results solely from the want of due care and diligence. Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla.3d DCA 1976); see also Lester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976).

AFFIRMED.

STETTIN, HERBERT, Associate Judge, concurs.

DREW, E. HARRIS (Ret.), Associate Judge, dissents with opinion.

DREW, E. HARRIS (Ret.), Associate Judge,

dissenting:

Because of my firm conviction that the two cases relied on by Judge Alderman in the majority opinion are wrong, I respectfully dissent.

The release in this case which runs to the named tort-feasors and to any other person or legal entity in the world “which might be charged with responsibility” for the tort, is, in my opinion, a deliberate frustration of the Statute which is designed to correct the evil which has so long existed in this area of the law, and is therefore contrary to the public policy established by that action of the Legislature and, as drawn, is” void.

Other jurisdictions have passed on this issue and disposed of it in a manner in which I am in accord. In Alaska the Court had before it a release releasing a specifically named person and “all other persons, firms, corporations, associations”, etc. A summary judgment was rendered in favor of an unnamed tort-feasor. Although Alaska had no statute similar to 768.041, supra, in reversing the summary judgment the Court said:

“In our opinion the rule which will bring most clarity to this area of ambiguous and conflicting release rules is one under which a release of one tort-feasor does not release other joint tort-feasors unless such tort-feasors are specifically named in the release. We are of the further view that adoption of this rule will insure that the intent of the parties to the release is given effect and will greatly minimize the possibility of any party being misled as to the effect of the release.”

The Court stated further:

“Neither appellee Peter Kiewit nor the State of Alaska are specifically mentioned in the body of the release. In light of this circumstance, we hold that the release in question did not have the effect of releasing Peter Kiewit or the State of Alaska.”

In 1971 the Texas Supreme Court followed the reasoning of the Alaska Court and quoted at length from an opinion by Mr. Justice Rutledge when he was serving on the Court of Appeals of the District of Columbia, as follows:

“The rule’s results are incongruous. More often than otherwise they are unjust and unintended. Wrongdoers who do not make or share in making reparation are discharged, while one willing to right the wrong and no more guilty bears the whole loss. Compromise is stifled, first, by inviting all to wait for the others to settle and, second, because claimants cannot accept less than full indemnity from one when doing that discharges all. Many, not knowing this, accept less only to find later they have walked into a trap. The rule shortchanges the claimant or overcharges the person who settles, as the recurring volume and pattern of litigation show. Finally, it is anomalous in legal theory, giving tortfeasors an advantage wholly inconsistent with the nature of their liability.”

Moreover, I think the views expressed in this dissent and the cases from other jurisdictions I have relied on are more consistent with the rationale of the Supreme Court in the Sun First National case decided in 1975 and concerning this same statute than the two cases cited in footnote 1 from the Second and Third District Courts of Appeal. Also see case cited in footnote.

I would reverse.

      . Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla.3d DCA 1976); Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976).

      . Sec. 768.041, Florida Statutes (1975).

      . Young v. State, 455 P.2d 889 (1969).

      . McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253 (1943).

      . Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975).

      . Sage v. Hale, 75 Misc.2d 256, 347 N.Y.S.2d 416 (1973).


text:
    A. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1367.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The only point presented on this appeal urges that the trial court erred in adjudicating respondent delinquent in that the State failed to prove an overt act committed in furtherance of the crime of attempted burglary. Our review of the record in the light of the briefs presented shows that the point is without foundation in that the respondent and several others actually approached a vehicle and removed parts of it. See Sections 810.02 and 777.04, Florida Statutes (1975).

Affirmed.


author: NATHAN, Judge.

text:
    VARIG BRAZILIAN AIRLINES, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Cesar Fontes, Respondents.
    No. 77-1391.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Hyzer, Knight & Lund, Miami, Surrey, Karasik, Morse & Seham, New York City, for petitioner.
    Kenneth H. "Hart, Jr., and Alex D. Little-field, Tallahassee, for respondents.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   NATHAN, Judge.

By this petition, Varig Brazilian Airlines, an employer, asks this court to issue a writ of certiorari to the Industrial Relations Commission, reversing the Commission’s entry of an order which reversed the decision of an appeals referee who, in turn, had reversed the decision of a claims examiner.

The claims examiner had found that claimant, an employee discharged by petitioner Varig, was entitled to unemployment benefits. Varig appealed, and the referee, after a full hearing found claimant had been discharged for misconduct connected with work and therefore was disqualified for benefits. See Section 443.06(1), Florida Statutes (1977). He also found that Varig’s experience account should be relieved of charges in connection with the claim. Claimant appealed to a review board which considered the matter on the basis of the same evidence which had been before the appeals referee. The review board concluded that claimant’s actions did not constitute misconduct sufficient to disqualify him from benefits and reversed the decision of the referee.

Petitioner Varig contends both that the Commission did not have the authority to reverse the decision of the appeals referee when no new facts were before it and that the decision reached by the Commission was erroneous.

Petitioner’s first contention is without merit. Section 443.07(4)(c), Florida Statutes (1977). Therefore the sole remaining question is whether or not the decision of the Commission comports with the essential requirements of the law, since the scope of our review is limited to a determination of whether the administrative agency acted without or in excess of its jurisdiction, or whether it departed from essential requirements of law in entering the order sought to be reviewed. Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971).

For purposes of the Florida Unemployment Compensation Law, chapter 443, Florida Statutes, the commonly accepted standard of misconduct has been stated repeatedly.

[MJisconduct ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result'.of inability or incapacity, inad-vertencies-or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.

Spaulding v. Fiorida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963); Castillo v. Florida Department of Commerce, supra; Fredericks v. Florida Department of Commerce, Industrial Relations Commission, 323 So.2d 286 (Fla. 2d DCA 1975).

The record reveals that claimant, who was employed by petitioner as a traffic representative, repeatedly objected, and twice refused, to work at certain stations because he would have had to move baggage a greater distance than at other stations. He repeatedly objected and at least once refused to carry out certain rotational duties which all similarly situated personnel performed in turn. On many occasions he worked cross word puzzles on the job and continued to do so after both verbal requests and written demands that he desist. His employment record shows repeated tardiness and excessive absences (many of them immediately before or after holidays). His co-workers and superiors testified to numerous instances of loudly argumentative behavior and occasional vulgarities of a most excessive nature, some in front of passengers. He was uncooperative about overtime and was once suspended for refusal to work overtime. Toward the end of his employment he misrouted baggage on four separate occasions.

In sum, we find substantial, competent evidence of repeated instances of behavior evincing intentional and substantial disregard of the employer’s interests sufficient to warrant disqualification from entitlement to unemployment benefits, and hold that the decision of the Industrial Relations Commission did not comport with the essential requirements of the law.

Accordingly, the decision of the Industrial Relations Commission reversing the decision of the appeals referee is quashed, and the cause is remanded with directions to enter an order which disqualifies claimant from unemployment benefits and relieves petitioner’s experience account of charges in connection with the claim.

It is so ordered.


author: RYDER, Judge.

text:
    Willie E. SMILEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-514.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.

      Jack O. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, and James R. Wulchak, Legal Intern, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

On August 29, 1975 the state filed a two-count information charging appellant in Count I with unlawfully resisting an officer with violence pursuant to Section 843.01, Florida Statutes (1975) and in Count II with unlawfully obstructing or opposing an officer without violence pursuant to Section 843.02, Florida Statutes (1975).

After the court dismissed the charge of obstructing or opposing an officer without violence, trial was held on Count I during which the court denied appellant’s motion for judgment of acquittal. Thereafter, the jury found appellant guilty of the lesser included offense of resisting arrest without violence. The court adjudicated appellant guilty of the misdemeanor and sentenced him to one year in jail, but later suspended the sentence and placed appellant on one year’s probation.

Appellant appeals contending, inter alia, that the trial court erred in denying defense counsel’s motions for a judgment of acquittal where the evidence was insufficient as a matter of law to support the charge of resisting arrest since the initial arrest was unlawful. We agree and reverse.

Initially, we should hasten to note that the events of this saga all occurred prior to October 1, 1975, the effective date of Section 776.051, Use of force in resisting or making an arrest; prohibition, Florida Statutes (1975).

Although the appellant urges three points upon this court on appeal, it is unnecessary to discuss Points I and III inasmuch as Point II, alluded to above, is dispositive of the case.

On August 16, 1975, the police were summoned to a school and were met by a Mrs. Nyblack and her children. They related to the police that Annette Babbel, the appellant’s sister, had held Kimberly Nyblack’s legs while a boy pulled down her panties and sat on her lap. Immediately thereafter, and without obtaining a warrant, the officers sought out Annette, placed her under arrest for the felony of sexual battery, handcuffed her and began to usher her towards their police vehicle. At this point, Annette became hysterical, diving to the ground, twisting and screaming.

Upon seeing his sister handcuffed and hysterical, and being taken to the police vehicle, the appellant approached the police officers and made inquiry as to what was occurring to his sister. Upon being told, the appellant tried to forcibly take his sister from the officers. At this point, the officers arrested appellant for obstructing an officer. Appellant continued to resist the removal of his sister from the school grounds and he was arrested for resisting arrest.

Section 901.15, Florida Statutes (1975), describes the occasion when arrests by officers without a warrant are lawful. That section provides, in part:

“901.15 When arrest by officer without warrant is lawful.—A peace officer may arrest a person without a warrant when:
******
(2) A felony has been committed and he reasonably believes that the person committed it.
(3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.”

The test in determining whether there existed reasonable grounds to arrest the defendant’s sister without a warrant is the sufficiency of the knowledge by the arresting officer, put to the test of what a reasonable man, knowing all the facts within the knowledge of the officer, would have believed under the circumstances. State v. Knapp, 294 So.2d 338 (Fla. 2d DCA 1974).

At this point, we must turn to consideration of the facts and circumstances surrounding this arrest, utilizing the test set out by the legislature, in determining whether or not the peace officers had reasonable belief that a felony had been committed by appellant’s sister, Annette. Sexual battery, as defined by Section 794.011, supra, “means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; . . .” The officers responding to the call of Mrs. Nyblack had solely information that Annette had held the legs of Mrs. Nyblack’s daughter while a boy pulled down her panties and sat on her lap. Nothing in the transcript of the record of the trial of the appellant adds to this description of the act for which Annette was arrested. When this testimony and the acts described are compared to the test and the definition of sexual battery in Section 794.011, supra, it is obvious to all that a sexual battery had not occurred and the arrest of Annette for such an alleged crime is thus unlawful.

As there was no sexual battery, the only offense which the appellant’s sister may have committed by holding Kimberly’s legs was a simple battery, a misdemeanor, Section 784.03, Florida Statutes (1975). Since this alleged misdemeanor was committed outside the presence of the officers, it will not justify the warrantless arrest. Phillips v. State, 314 So.2d 619 (Fla. 4th DCA 1975).

Indeed, it appears that even the arresting officers doubted the lawfulness of the initial arrest, and when told by Officer Brock to arrest Annette, Officers Crotty and Justice questioned this action and would arrest her only upon confirmation of their acting superior officer.

The arrest of Annette being unlawful, it follows then that the appellant’s arrest for obstructing a police officer and resisting a police officer also was illegal since, at the time of this incident, the law was in such a status as to permit one to resist an arrest if that arrest is unlawful. State v. Saunders, 339 So.2d 641 (Fla.1976); Burgess v. State, 313 So.2d 479 (Fla. 2d DCA 1975), declining to answer certified question, 326 So.2d 441 (Fla.1976).

It follows then that the trial court should have granted his motion for a judgment of acquittal. His failure to do so is error, therefore, we reverse the judgment and sentence of the trial court and remand the case to the trial court with direction that it discharge appellant.

SCHEB, Acting C. J., and DANAHY, J., concur.


author: BOARDMAN, Chief Judge.

text:
    Charles A. ALARIO and Syndicated Cinemas, Inc., a Florida Corporation, Appellants, v. Fred H. MILLER and Monica F. Miller, his wife, Appellees.
    No. 77-29.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    L. Norman Vaughan-Birch of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellants.
    Allen J. Levin, Port Charlotte, for appel-lees.
   BOARDMAN, Chief Judge.

Appellants, Charles A. Alario and Syndicated Cinemas, Inc. (Syndicated), appeal a final judgment rendered in favor of appel-lees, Fred and Monica Miller, in the sum of $8,900. We reverse.

Appellees in their individual capacity filed suit against Alario and Syndicated seeking a judgment for damages. Appel-lees were stockholders of twenty shares of the stock of Englewood Syndicated Cinemas, Inc. (Englewood). The remaining eighty shares of stock of Englewood were owned by Syndicated. Alario was at all pertinent times the president, chairman of the board of directors, and chief executive officer of both Englewood and Syndicated. Appellees alleged negligence, breach of fiduciary duty, corporate mismanagement and misappropriation of the corporate assets of Englewood, and fraud by Alario. They alleged that as a proximate result of the wrongful acts of appellants, Englewood had been rendered virtually insolvent and appellees’ investment rendered worthless. Englewood was not a party to this suit.

The threshold question for our determination is whether appellees have a cause of action in their own right or whether their cause of action is derived from the corporation’s right to bring the action. It is the body of the complaint which determines whether the injury is direct as to the stockholder and the cause of action individual to him or is indirect as to the stockholder and the cause of action derivative from the corporation. 13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5912 (rev. ed. 1970). We have carefully examined the record and have concluded that the gravamen of appellees’ action, that is the nature of the injuries alleged and the wrongs sought to be remedied, is a stockholder’s derivative action and not an individual action. See Gadd v. Pearson, 351 F.Supp. 895 (M.D.Fla.1972).

There is a clear and necessary distinction between an individual action and a derivative one. The general rule is stated in 19 Am.Jur.2d Corporations § 528 (1965).

A stockholder’s derivative action is an action brought by one or more stockholders of a corporation to enforce a corporate right or to prevent or remedy a wrong to the corporation in cases where the corporation, because it is controlled by the wrongdoers or for other reasons, fails and refuses to take appropriate action for its own protection. An action brought by a stockholder is derivative if the gravamen of the complaint is injury to the corporation or to the whole body of its stock or property and not injury to the plaintiff’s individual interest as a stockholder.

This court in Citizens National Bank v. Peters, 175 So.2d 54 (Fla. 2d DCA 1965) held that:

A Florida court has defined a derivative suit as an action in which a stockholder seeks to enforce a right of action existing in the corporation. See James Talcott, Inc. v. McDowell, Fla.App.1962, 148 So.2d 36. Conversely, a direct action, or as some prefer, an individual action, is a suit by a stockholder to enforce a right of action existing in him.
What these definitions attempt to convey is that a stockholder may bring a suit in his own right to redress an injury sustained directly by him, and which is separate and distinct from that sustained by other stockholders. If, however, the injury is primarily against the corporation, or the stockholders generally, then the cause of action is in the corporation and the individual’s right to bring it is derived from the corporation.

Citizens National Bank, supra, at 56. If the damages are only indirectly sustained by the stockholder as a result of injury to the corporation, the stockholder does not have a cause of action as an individual. See 13 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 5911, 5924, 5926, 5928 (rev. ed. 1970).

In view of our conclusion that the thrust of appellees’ action is derivative, appellees by filing this action as individuals misconceived their remedy. For with respect to a stockholder’s derivative action:

The action is not to establish a personal right. Stockholders are permitted to sue ex necessitate rei, and although by the record the corporation may be made a party defendant, the stockholder bringing the action is in fact its representative. Otherwise than in name the action is by the corporation, and if relief be obtained it belongs, not to the stockholder bringing the action, but to the corporation. The cause of action belongs to the corporation and not to the stockholders individually or collectively, and hence the decree ordinarily must award relief to the corporation rather than to the actual plaintiff.

13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5953 (rev. ed. 1970).

The corollary of these principles of law is that in a derivative action the corporation on behalf of which the stockholders sue is an indispensable party, and the court has no jurisdiction to adjudicate the rights of that corporation in its absence as a party, as was the case here.

The corporation is a necessary defendant. In other words, the corporation on behalf of which plaintiffs sue must be made a party defendant so that a decree may appropriately give the corporation the fruit of any recovery by the plaintiffs. The corporation is not merely a proper party, but is an essential, indispensable party, and the failure to make the corporation a party is not a mere defect of parties but leaves the stockholder without a cause of action and the court without jurisdiction. (Emphasis added.)

13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5997 (rev. ed. 1970). See 19 Am.Jur.2d Corporations § 572 (1965). It follows that entry of final judgment in favor of appellees in the case before us is contrary to law and constitutes reversible error.-

With due respect to the trial judge the issue of the lack of an indispensable party was not raised in the trial court nor did either party argue the point on this appeal. Nevertheless, this issue may be raised for the first time on appeal, and we do so sua sponte. See Martinez v. Balbin, 76 So.2d 488 (Fla.1954); McAdoo v. Moses, 101 Fla. 936, 132 So. 638 (1931); Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972).

Accordingly, the final judgment is reversed without prejudice to appellees to institute a derivative action.

REVERSED.

HOBSON and RYDER, JJ„ concur.

      . Appellees’ allegations of fraud are intertwined with the other allegations and only arguably constitute an individual cause of action. We need not treat this point, however, because our review of the record indicates that the cause of action was not proved and that the judgment was not based on fraud, but if it had been, the judgment would be reversible for failure to carry the burden of proof.


text:
    Rupert BODDEN, d/b/a Coin-Op-Laundry, Appellant, v. James P. CARBONELL, d/b/a Happy Villas, Appellee.
    No. 77-946.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.

      Charles E. Bergmann of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, Tampa, for appellant.
    No appearance for appellee.
   BOARDMAN, Chief Judge.

Appellant/plaintiff, Rupert Bodden, d/b/a Coin-Op-Laundry, appeals the final judgment rendered in favor of appel-lee/defendant, James P. Carbonell, d/b/a Happy Villas. We reverse.

Appellant was in the business of leasing and operating laundry rooms and installing necessary equipment at various apartment complexes. On March 1, 1975 appellant entered into a written agreement with Des-mont, Inc., owner of the apartment complex Woodcrest Apartments, located at 1348 Dottie Drive, Tampa, Florida. Desmont, Inc., which is not a party to this proceeding, was the predecessor in title to appellee who purchased the apartment complex on November 26, 1975. The deed of conveyance provided that it was subject to existing leases with tenants. In February 1976 ap-pellee notified appellant that he was to remove equipment from the laundry room. Appellant did not remove the equipment and in April 1976 appellee placed the machines in storage.

Appellant filed an amended complaint alleging in Count I breach of a lease and in Count II forcible entry and unlawful de-tainer. Appellant filed an answer and counterclaim which was based upon a breach of the written lease agreement. Subsequent to trial before the court the final judgment was rendered adversely to appellant.

The trial court found, among other things, that the document is a license “[njotwithstanding that the agreement is entitled Lease. . .” The trial court in reaching this conclusion placed considerable reliance on the cases of Wash-O-Matic Laundry Co. v. 621 Lefferts Avenue Corp., 191 Misc. 884, 82 N.Y.S.2d 572 (Sup.Ct.1948) and Kaypar Corp. v. Fosterport Realty Corp., 1 Misc.2d 469, 69 N.Y.S.2d 313 (Sup.Ct.1947). The trial court further found that since the agreement was a license and not a lease it could be terminated at the will of either party.

We have reviewed the record, including the documentary exhibits admitted into evidence, the brief filed by appellant and oral argument of counsel for appellant. For reasons known only to appellee we were not favored with either his brief or the benefit of oral argument of counsel.

We have read the cases which were relied upon by the trial court in reaching its decision and believe they are distinguishable from the case before us. In Wash-O-Matic and Kaypar the court held the agreements to be licenses because the sole purpose of the agreements was to supply equipment and did not grant a right of exclusive possession to the premises where the equipment was placed. As argued by appellant, the facts in this case more neatly fit the factual situation found in Polner v. Arling Realty, Inc., 194 Misc. 598, 88 N.Y.S.2d 348 (Sup.Ct.1949). In Polner and the case before us periodic rent was to be paid on the premises, the agreement was for a definite term of years, and the agreement was referred to as a lease. In addition, in the instant case appellant had exclusive possession of a particularly described area in the apartment complex, and the parties to the agreement clearly intended to enter into a lease. The evidence shows that ap-pellee purchased the apartment complex with actual knowledge of the existence of the agreement that had been entered into between appellant and appellee’s predecessor in title and, more significantly, appellee thereafter accepted rental payments from appellant under the payment provisions of the lease.

The case is remanded for a new trial on all issues framed by the pleadings.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SCHEB and RYDER, JJ., concur.

      . Although the lease does not comply with § 689.01, Fla.Stat. (1975) for lack of one witness to the five-year agreement, appellee is estopped by his conduct in accepting rental payments to assert this as a defense. Gill v. Livingston, 158 Fla. 577, 29 So.2d 631 (1947).


text:
    Clarence Harold NAPPIER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1067.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged by information with “strong-arm” robbery contrary to Section 812.13(2)(c), Florida Statutes (1975). Upon a jury trial, appellant was convicted of the crime charged. The court thereupon adjudged him guilty in accordance with the jury’s verdict. At a sentencing hearing subsequent to the trial, and after proper notice was served upon appellant, the trial court determined appellant to be an habitual felony offender within the meaning of Section 775.084, Florida Statutes (1975) and sentenced him to an extended term of thirty years in prison at hard labor with credit for time served.

In this appeal, appellant contends the trial judge erroneously instructed the jury on the maximum penalty for “strong-arm” robbery. Appellant urges that, because of this error, he is entitled to have his thirty-year sentence reduced to fifteen years, citing Bryant v. State, 334 So.2d 160 (Fla. 2d DCA 1976); Burt v. State, 330 So.2d 472 (Fla. 1st DCA 1976); and Stern v. State, 296 So.2d 549 (Fla. 3d DCA 1974). We disagree and affirm.

During his charge on the law, the trial judge, without objection, instructed the jury on the applicable penalty for the crime charged as follows:

“Now, the legislature has established that the maximum penalty for the robbery in this particular statute, 812.13(2)(c), is fifteen years or as low down as probation, but you are not to be concerned with the penalty in the event that you reach a verdict of guilty. Just as the determination of guilt or innocence of the accused rests solely and absolutely with you, so also does the determination of the extent of the punishment rest solely and absolutely with this court.”

“Strong-arm” robbery is a felony of the second degree punishable by a term of imprisonment not exceeding fifteen years. Sections 812.13(2)(c) and 775.082(3)(c), Florida Statutes (1975). However, one convicted of a felony of the second degree who is properly determined to be an habitual felony offender pursuant to Section 775.084, Florida Statutes (1975) may be sentenced to an extended term of imprisonment not exceeding thirty years. Section 775.084(4)(a), Florida Statutes (1975). Appellant was sentenced to an enhanced term pursuant to these statutes.

Appellant’s reliance on Bryant v. State, supra, and Burt v. State, supra, is misplaced because those cases do not involve the enhanced sentence provision of Section 775.-084, Florida Statutes (1975). Appellant also relies on Stern v. State, supra. In Stern, the trial judge, without objection, instructed the jury that the crime of second degree murder was punishable by a maximum term' of imprisonment of thirty years. Stern was convicted of second degree murder. However, due to Stern’s status as a habitual felony offender pursuant to Section 775.084, Florida Statutes (1973), he received an enhanced sentence of life imprisonment. Our sister court found that instruction to be error and reduced Stern’s sentence from life imprisonment to thirty years.

We decline to follow the decision in Stern for the following reasons: First, had the judge in the case at bar told the jury that appellant could receive up to thirty years in prison because of his status as an habitual felony offender, this would have improperly revealed to the jury that appellant had been previously convicted of a crime. The defendant here did not object to the instruction given, nor did he request the trial judge to tell the jury about his past criminal record and the possibility of an enhanced sentence should he be convicted. That question, therefore, is not before us.

Second, as the trial judge instructed the jurors, the determination of the extent of punishment rests solely within the discretion of the trial judge, not the jury.

A third reason can be found within the habitual felony offender statute itself. Section 775.084, Florida Statutes (1975) requires that a separate proceeding must be conducted to determine whether, for the protection of the public, it is necessary to sentence the defendant to an extended term. Thus, at the time the trial judge instructs the jury as to the possible penalties should they convict the accused, he has absolutely no way of knowing whether the defendant will be found to be an habitual felony offender in the subsequent proceeding.

For these reasons, we hold that the trial judge did not err in instructing the jury as to the potential penalty for “strong-arm” robbery.

We have carefully examined the other point raised by appellant and find error, if any, was harmless.

Although we affirm appellant’s conviction, we must remand this case for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in .the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

SCHEB, A. C. J., and OTT and DAN-AHY, JJ., concur.


text:
    Shirley A. KETTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1257.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, Stephen 0. Rushing, Asst. Public Defender, and Stephannie DaCosta, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant entered a plea of guilty to a charge of possession of heroin. The court sentenced her to a term of one year in county jail but ordered that the sentence be suspended after ninety days and appellant placed on three years probation. During the period of appellant’s probation, her supervisor filed an affidavit charging her with a violation of probation. Pursuant to plea negotiations, appellant admitted the violation and the court sentenced her to one year in county jail with credit for the time spent in prison awaiting the revocation hearing.

On this appeal, appellant contends that the court also should have given her credit for the ninety days she spent in jail on the original sentence. This is clearly required under State v. Jones, 327 So.2d 18 (Fla.1976). There is nothing in the record to suggest that the plea negotiations contemplated a one year sentence in addition to the ninety days which had already been served for the same crime.

The order revoking probation is affirmed. The case is remanded for correction of sentence. Appellant need not be present when this is done.

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


text:
    FLORIDA GULF HEALTH SYSTEMS AGENCY, INC., Petitioner, v. The COMMISSION ON ETHICS of the State of Florida, Respondent.
    No. 77-1397.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    Horace A. Andrews of Harris, Harris & Andrews, St. Petersburg, for petitioner.
    Robert L. Shevin, Atty. Gen., and Walter Kelly, Asst. Atty. Gen., Tallahassee, for respondent.
   BOARDMAN, Chief Judge.

By petition for writ of certiorari petitioner, Florida Gulf Health Systems Agency, Inc. (FGHS), seeks review of opinion CEO 77-102 issued July 21, 1977 by respondent, Commission on Ethics of the State of Florida. Upon consideration of the matter the petition is granted.

Petitioner requested an advisory opinion from respondent concerning the applicability of the financial disclosure law, Section 112.3145, Florida Statutes (1975), to members of the governing board of FGHS.

‘Is a person who becomes a member of the governing body of Florida Gulf Health Systems Agency, Inc., . by action of the governing body in filling a vacancy on its board, a “local officer” pursuant to F.S. 112.3145?’ because of their broad powers, including the power to expend public funds and to affect the lives of citizens, members of a governing board of a Health Systems Agency fall within the class of public officials for which financial disclosure was intended, despite the fact that such agencies are legally structured as nonprofit [sic] corporations.

Respondent answered the posed question in the affirmative on the basis that

That opinion referred to a previous opinion, CEO 77-18 issued February 17, 1977, which found the financial disclosure law applicable to the members of the governing body of the Florida Panhandle Health System Agency, Inc. reasoning that:

As each HSA has the authority to establish plans for the future development of health facilities in its area, to make grants and to enter into contracts in furtherance of those plans, we find that the powers, jurisdiction and authority of each HSÁ are not solely advisory. Therefore an HSA is not an advisory body for purposes of financial disclosure.
The health planning functions of each HSA and the legal authority to implement its plans give each HSA broad power to influence the lives of persons within its jurisdiction. Because of this authority, we feel that the members of the governing body of each HSA, the persons who are responsible for its decision, undoubtedly fall within the class of public officials for which financial disclosure was intended by the Legislature. Moreover, had each HSA been structured as a public regional planning body or a single unit of local government (as the Act contemplated), instead of as a nonprofit corporation, members of its governing body would clearly constitute ‘local officers.’ As a result, we refuse to believe that the legal structure of an HSA is of material consequence here.

FGHS is a private, nonprofit corporation formed according to the corporate laws of this state and pursuant to the National Health Planning and Resources Development Act of 1974 (Act). 42 U.S.C. §§ 217a, 229, 291b, 300k-t (1977). There is no dispute that petitioner complied with the provisions of the pertinent state law with regard to its organization as well as with the applicable federal law and that it was the legal entity properly designated as the health system agency for Area IV of Florida. The legal structure of a health service agency may be either (1) a nonprofit, private corporation, (2) a public regional planning body, or (3) a unit of general local government. 42 U.S.C. § 3001 -1(b)(1) (1977). A member of a public regional planning body or local government is subject to Section 112.3145 by virtue of his position as a “local officer.” Respondent concluded that since the members of the agencies occupy identical positions and perform identical functions under the Act regardless of its form of organization, a member of a private corporation who is not otherwise subject to the financial disclosure law must comply with that statute.

We cannot accept this conclusion because there is no authority to support it. We have been unable to find either statutory pronouncement or case law construing a statute which would support the result reached by respondent. The legislature is charged with the responsibility of making the law. The courts, on the other hand, are mandated to follow the law and follow the law they must. In doing so we must interpret and construe a statute according to the precise language adopted by the legislature.

By its express terms Section 112.-3145 applies only to state officers, local officers, candidates for those offices, and other specified employees. “Local officer” is the only category even arguably applicable to the members of FGHS. Section 112.-3145(l)(a) defines “local officer” for the purposes of this statute as:

1. Every person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for. an unexpired term in such an elective office.
2. Any appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body.

Neither stockholders, directors, nor officers of a private corporation can be termed “local officers” under this statute since they are neither “appointed” nor “elected” as contemplated by the financial disclosure law. Members of a private corporation accede to their positions as do members of any private business, that is by agreement among themselves without regard to the public generally.

Petitioner, by its petition for writ of cer-tiorari, has raised as a second point whether

THE BOARD MEMBERS OF FGHS ARE “PUBLIC OFFICERS” FOR PURPOSES OF THE VOTING CONFLICT OF INTEREST PROVISIONS OF THE CODE OF ETHICS (SECTION 112.3143, . FLORIDA STATUTES) AND THE STANDARDS OF CONDUCT PROVISIONS (SECTION 112.313, FLORIDA STATUTES).

We are precluded from answering this question for we are without appellate jurisdiction because it was not presented to respondent by petitioner and, consequently, not answered in opinion CEO 77-102 under review.

REVERSED.

SCHEB and OTT, JJ., concur.

      . The attorneys for both parties argued at length, in their briefs and during oral argument, the question whether a health service area is a “political subdivision” as used in this definition of “local officer.” In view of our holding in this case we need not reach that issue.


author: GRIMES, Acting Chief Judge.

text:
    Jean C. BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1509.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The primary issue in this appeal is whether the appellant made a showing sufficient to require the court to conduct an in camera proceeding to determine whether the state should be required to disclose the name and address of an alleged confidential informant.

The appellant was charged with two counts of sale of marijuana and two counts of felony possession of marijuana. The appellant filed a motion seeking an order compelling the state to disclose the name and address of a confidential informant. The motion alleged that the informant was present at and arranged for each sale, that appellant had no other way of knowing the name of the informant, and that the testimony of the informant was necessary to the appellant’s theory of entrapment. The state would not stipulate to the facts alleged in the motion and no testimony was presented. The motion was denied, and the appellant later entered a nolo contendere plea, reserving the right to appeal the denial of the motion.

At the outset, we need not consider the issue as it relates to the two convictions for possession because entrapment is not a defense to possession. English v. State, 301 So.2d 813 (Fla. 2d DCA 1974). With respect to the two sale convictions, the allegations of fact in the motion were very similar to those in Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), in which this court held that in response to a pretrial motion, the judge should have conducted an in camera hearing in order to decide whether the state would be required to disclose the identity of the confidential informant. However, this case differs from Munford in one significant particular. In that case, the state stipulated to the facts alleged in the motion, whereas here there was no such stipulation. We do not go so far as to hold that there must be a stipulation of facts or even the presentation of testimony, but we do feel that before the Munford requirement of an in camera hearing may be invoked, the defendant must at least swear to the facts upon which his motion is based. Otherwise, we can visualize the possibility that our criminal courts would be unduly burdened with conducting in camera proceedings in response to what could well be spurious allegations of fact. Since appellant’s motion was unverified and there was no other proof of the pertinent facts, the court did not err in denying the motion without having held an in camera hearing.

As an ancillary point on appeal, we note that appellant correctly points out that the court imposed a single general sentence of probation for all four offenses contrary to the dictates of Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975).

The judgments are affirmed, but the case is remanded for the purpose of resentenc-ing.

RYDER and DANAHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    CASINO, INC., Petitioner, v. Sam KUGEARES, Respondent.
    No. 77-1631.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    William F. Casler, St. Petersburg, for petitioner.
    James W. Bauman of Gormin, Geoghe-gan, Easley, Gránese & Bauman, Clear-water, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner seeks issuance of writ of cer-tiorari to the circuit court below, acting in its appellate capacity, to review the order of that court dismissing petitioner’s appeal from the county court. The circuit court dismissed the appeal because of defects in the notice of appeal filed by petitioner’s prior counsel. We find that the notice of appeal was timely filed and that its defects were not fatal. Petition for writ of certio-rari is granted and the order of dismissal is reversed.

Respondent brought an action in the county court seeking eviction of his tenant, petitioner. After final hearing, the county court entered “Judgment” on June 7, 1977. This judgment found that respondent had adequately proved only one of four alleged violations of the lease. The body of the judgment concluded with the statement that:

“Prior to this Court entering Final ruling, in accordance with testimony of the Plaintiff that he is willing to negotiate for additional rent to cover the area occupied by the out buildings, it is requested by this Court that the parties consider additional rent and report to this Court as to the outcome of this negotiation.” (emphasis added)

There was no order of eviction, of payment of additional rent, or of other relief against petitioner.

On July 6, 1977, the county court entered “Final Judgment of Eviction.” This final judgment begins with:

“THIS CAUSE came on to be heard subsequent to Judgment being entered by this Court on June 7, 1977, wherein said Judgment requested that the parties attempt to reach some settlement based upon the June 7, 1977 Judgment, for the purpose of avoiding this Court’s Judgment of Eviction against Defendant. Counsel appeared for both parties and represented to the Court that they were unable to arrive at any settlement.”

The county court then ordered petitioner to surrender the premises.

Petitioner filed notice of appeal to the circuit court on July 20, 1977. The appeal was “from the judgment and order entered by this court on the 6th day of June, 1977.” (emphasis supplied) This notice of appeal was filed 43 days after the June judgment and 14 days after the July final judgment. The references to the record book number and page number do not correspond to either those of the June judgment or the July final judgment. Upon motion, the circuit court dismissed the appeal.

It is indisputable that the notice of appeal contained errors in its references to the judgment appealed. Petitioner contends that the appeal is from the July final judgment and that due to clerical error, “June” was typed on the notice rather than “July” as intended. Respondent contends that the appeal was from the June judgment, that “6” was erroneously typed rather than “7”, and that the notice was untimely filed with respect to the June judgment.

Of course, a notice of appeal which is untimely filed fails to vest the appellate court with jurisdiction in the case. Wolf v. Cleveland Electric Co., 58 So.2d 153 (Fla.1952). However, we do not consider this to be a case where the notice of appeal was untimely filed. Rather, this is a case where the notice of appeal was properly filed but contains defects in its body. We come to this conclusion not only based upon petitioner’s unrefuted protestations of an intent to appeal the July final judgment and upon judicial solicitude for preservation of a party’s right to appeal, but also because the nature and effect of the judgments indicate that full appeal was proper only from the later judgment.

The June judgment contained only the trial court’s findings. It did not order any relief against petitioner. It did not put an end to the trial court’s judicial labors in the cause. Cf. Wolf v. Cleveland Electric Co., supra. On the contrary, it expressly envisioned a future final order. The June judgment was, at most, in the nature of a nonfi-nal partial judgment from which no full appeal could be taken. Harbor Yacht Repair, Inc. v. Sanger, 267 So.2d 51 (Fla.3d DCA 1972). By way of contrast, the July judgment disposed of the last remaining dispute between the parties by prescribing the remedy. Under these facts, we will not impute to petitioner an attempt to appeal a nonappealable order where it is at least as likely that the notice invoked appeal of the subsequent appealable order.

We turn now to the question of whether the defects in the notice of appeal warranted dismissal of the appeal. Florida Appellate Rule 3.2 specifies that:

“Deficiencies in form or substance in the notice of appeal shall not ... be ground for dismissal of the appeal unless it be clearly shown that the complaining party was misled or prejudiced by such deficiencies.” (emphasis added)

The question is whether the notice sufficiently indicates an intent to appeal an ap-pealable ordqr. Gissendanner v. State, 241 So.2d 162 (Fla.1970). The essential test, the deciding test, is whether the complaining party has been prejudiced. Greyhound Corporation v. Carswell, 181 So.2d 638 (Fla.1966).

In the instant case, the notice of appeal sufficiently indicates an intent to appeal an appealable order in this litigation between the parties. Although respondent asserts his right to rely on the notice of appeal as written, he has failed to show both an act in reliance on the notice and prejudice arising from any such act. These deficiencies were not grounds for dismissal of the appeal. Fla.R.App.P. 3.2.

The notice of appeal was not fatally defective. The circuit court clearly departed from the essential requirements of law to petitioner’s irreparable harm. Consequently, petitioner’s petition for writ of certiorari is granted and we reverse the order of the circuit court dismissing the appeal.

GRIMES and DANAHY, JJ., concur.

      . See Greyhound Corporation v. Carswell, 181 So.2d 638, 641 (Fla.1966).


author: McCORD, Chief Judge. McCORD, Chief Judge.

text:
    Charles R. ENTERKIN and Hartford Fire Insurance Company, Appellants, v. Ebb W. PATE, Merri M. Pate and Alligator Point Marina, Inc., Appellees.
    No. EE-107.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1978.
    Rehearing Denied March 1, 1978.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Brian T. Hay.es, Monticello, for appellees Pate.
    Richard B. Collins, Tallahassee, for appel-lee Alligator Point Marina, Inc.
   McCORD, Chief Judge.

This is an appeal from final judgment following a jury verdict. The suit below was brought by appellees, Ebb W. Pate and Merri M. Pate, against appellants, Charles R. Enterkin and Hartford Fire Insurance Company (Enterkin’s insurance carrier), and appellee, Alligator Point Marina, Inc. The jury returned a verdict against appellants and in favor of Alligator Point Marina, appellants’ co-defendant below. The court entered judgment in accordance with the jury verdict. The action is for damages arising from the destruction by fire of the Pates’ yacht, the Merrimaker, and other personal property. The yacht was docked at Alligator Point Marina next to the boat, the Day-by-Day, owned by Enterkin and one Frank A. Cody (not a party to this action). The Pates were at that time in the process of building a house and were living on their yacht. One night, when the Pates were away from the yacht, fire was discovered in both boats and they were towed out of the marina. They both burned to their waterlines. The witness who first discovered the fire testified that the first flames he saw were in the engine compartment of the Day-by-Day, and they spread to the Pates’ yacht. No one had been seen aboard the Day-by-Day for several days before the fire occurred. The cabin was usually kept locked, but there was a key on a board at the marina office. Several days before the fire, Peter Fenn, the president and chief stockholder of the marina, had seen a stranger aboard the Day-by-Day. He testified that he made no inquiry of that individual because he had been told by Mr. Enterkin that other people would be on his boat from time to time.

Upon the fire being reported, a volunteer fire department sent a truck to the marina, but by the time it arrived, both boats had been towed from the dock area into the bay by Mr. Fenn. The Merrimaker was not a total loss when the volunteer firemen arrived, but their hose was not long enough to reach the Merrimaker.

William Cronis, an expert witness called in by Hartford, testified that several unusual things were found in the investigation of the incident as to the Day-by-Day; that covers had been taken off the generators on the engine, and the brushes had been removed; that the exhaust manifolds had been taken off the engine, but the nuts holding the manifolds on had been screwed back onto the studs; that the automatic C02 fire extinguisher system had been turned off. The witness cut pieces of fiberglass from the inside of the hull of the vessel on the stern and the samples were taken back to the laboratory for analysis. The chemist who analyzed them testified that the analysis showed there was a large amount of diesel fuel on the fiberglass cut from the hull.

The Pates contended that Enterkin was negligent in allowing the fire to start on his boat and that the marina was negligent in not providing enough firefighting equipment and in towing the boat from the marina into the bay out of reach of the fire equipment. Both at the conclusion of the Pates’ case and at the conclusion of the evidence, appellants moved for a directed verdict in their favor contending that no negligence on the part of Enterkin was shown to have caused the fire. The trial court reserved ruling on the motion until after the verdict was rendered and then denied it and entered the final judgment.

Appellant contends that the record contains no evidence that negligence on the part of Enterkin caused the fire and, therefore, the court erred in not granting his motion for directed verdict. We agree. While the evidence creates a suspicion that the boat of which Enterkin was a part-owner may have been deliberately burned by someone or may have been put in such state by someone that it caught fire from unknown causes, there is no evidence to support a conclusion that the fire resulted from any negligence or action on Enterkin’s part.

Appellants’ second point is a contention that the verdict in favor of Alligator Point Marina and against the Pates is contrary to the manifest weight of the evidence. The Pates did not appeal that judgment. Having reached the conclusion that judgment should be entered in Enterkin’s favor in the Pates’ action against him, we find that Enterkin has no standing to question the judgment in Alligator Point Marina’s favor, such judgment not being adverse to Enterkin. We, therefore, refrain in this case from ruling on the question of whether or not Enterkin would have standing if our ruling were otherwise.

The judgment against appellants is reversed, and the cause is remanded with directions to enter judgment in favor of appellants.

BOYER and MILLS, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

By petition for rehearing appellees, Ebb W. Pate and Merri M. Pate, call our attention to an erroneous statement contained in the opinion in this cause. The opinion states that, both at the conclusion of the ■Pates’ case and at the conclusion of the evidence, appellants moved for a directed verdict in their favor and that the trial court reserved ruling on the motion until after the verdict was rendered and then denied it and entered the final judgment. The motion for directed verdict which the trial court reserved ruling upon was the motion of appellee, Alligator Point Marina, Inc. The trial judge did not reserve ruling on the Pates’ motions but ruled upon each after hearing argument at the time it was made. This erroneous statement does not change the ruling of our previous opinion. To correct the error, it is ordered that the sentence [beginning in line 8 from the top of page 940, column 1] is stricken, said sentence stating as follows:

“The trial court reserved ruling on the motion until after the verdict was rendered and then denied it and entered the final judgment.”

In lieu thereof, the following sentence is inserted:

“The motions were denied.”

We have considered the other points raised by the Pates in their petition for rehearing and find them to be without merit.

Petition for rehearing DENIED.

BOYER and MILLS, JJ., concur.


text:
    Gustav L. LUND and Harriet Bernice Lund, Appellants, v. J. W. COOK, Appellee.
    No. FF-164.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1978.
    Rehearing Denied Feb. 28, 1978.

      C. Roger Vinson of Beggs & Lane, Pensacola, for appellants.
    A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for ap-pellee.
   McCORD, Chief Judge.

This appeal is from a summary judgment in favor of appellee by which the trial court ruled that the statute of limitations had run on appellants’ cause of action. We disagree and reverse.

Appellants filed this action against appel-lee on January 20, 1976, for alleged negligence in making a survey and plat, the plat having been delivered to appellants in August, 1958. As stated by the trial judge in the summary judgment, appellee admitted the allegations of the complaint for the purposes of argument on the motion for summary judgment and the parties stipulated that the alleged errors in the survey work and plat were not readily apparent or discoverable by appellants; that there is evidence that appellants did not become aware of the error or errors in the survey work and plat until 1973 or 1974; that the applicable statute of limitations is § 95.-ll(3)(a) or § 95.11(3)(p), Florida Statutes (1975), both of which specify a period of four years. The issue before the trial court and the issue here is whether or not the statute of limitations began to run at the time of delivery of the survey and plat to appellants or at the time appellants knew or should have known of the existence of the defects therein. Chapter 74-382, Laws of Florida, made certain changes in § 95.11, and appellants contend that these changes did not alter the well-established “discovery rule” in Florida as to this cause. Appellee contends that the 1974 amendment eliminated such rule, and the statute of limitations therefore began to run in 1958 rather than in 1973 or 1974 when the errors were discovered; that this action is thus barred.

From the allegations of the complaint it appears that appellants were the owners of certain property and employed appellee to survey the property and prepare and certify the plat of a subdivision; that appellants caused the plat prepared by appellee to be recorded and thereafter sold lots to purchasers under warranty deeds over an extended period of time; that appellants later discovered that the subdivision was inaccurately and improperly located by appellee’s survey and that it seriously encroached upon other property; that appellants were forced as a result thereof to purchase all of the land shown on the survey as encroaching upon such other property, such purchase being made on November 14, 1974.

In Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969), a products liability suit, the Supreme Court held that the statute of limitations on the action ran from the time the buyer first discovered or reasonably should have discovered the defect. The court there followed its previous rule established in City of Miami v. Brooks, 70 So.2d 306 (Fla.1954), a malpractice negligence action in which the court held that the statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to a cause of action. The court there said:

“To hold otherwise, under circumstances of this kind, would indeed be a harsh rule and prevent relief to an injured party who was without notice during the statutory period of any negligent act that might cause injury.”

In Creviston, the Supreme Court, referring to its previous ruling in Brooks and other cases, said:

“From the standpoint of legal principles, the holdings in the cases above discussed appear to crystallize in favor of application of the blameless ignorance doctrine in those instances where the injured plaintiff was unaware or had no reason to know that an invasion of his legal rights has occurred. In reality, such a doctrine is merely a recognition of the fundamental principle that regardless of the underlying nature of the cause of action, the accrual of the same must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights.” (emphasis supplied)

Chapter 74-382, Laws of Florida, did not change this rule though it did provide an overall limitation on its application as to certain specific types of cases. Rather than abrogate the rule, the amendment reinforces it. § 95.031, Florida Statutes (1975) now provides:

“Except as provided in subsection 95.-051(2) and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
(1) A cause of action accrues when the last element constituting the cause of action occurs . . . ”

When we turn to the Supreme Court’s ruling in Creviston, we find that the cause of action accrues with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights. We find nothing in the statutes that abrogates this ruling in Creviston. It should be noted, however, that the amended statute does modify the rule to some extent in actions for products liability and fraud by placing an overall limitation thereon of 12 years after the date of delivery of the completed product to the original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered. See § 95.031(2). Also, the amended statute places the same 12-year overall limitation upon an action founded on the design, planning, or construction of an improvement to real property which involves a latent defect. See § 95.11(3)(c). In addition, § 95.11(4)(a) and (b) place similar overall limitations upon actions for professional malpractice and actions for medical malpractice.

The record at this point affirmatively indicates that this action was filed within four years of the discovery by appellants of the defects in the survey and plat. The trial judge erred in entering summary judgment in favor of appellee.

REVERSED.

BOYER and MILLS, JJ., concur.


text:
    TOWN OF REDINGTON SHORES, a Florida Municipal Corporation, and Pinellas County, a political subdivision of the State of Florida, Appellants, v. REDINGTON TOWERS, INC., a Florida Corporation, Appellee.
    No. 76-909.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1978.

      Gerald A. Figurski, Asst. County Atty., Clearwater, for appellant Pinellas County.
    William H. Fleece of Fleece, Rhoades & Werly, St. Petersburg, for appellant Town of Redington Shores.
    Richard J. McCrory of Owen & McCrory, St. Petersburg, for appellee.
   BOARDMAN, Chief Judge.

Appellee/plaintiff, Redington Towers, Inc., filed this action seeking a declaration of its rights in a dispute with appellants/defendants, Town of Redington Shores and Pinellas County, over sewage and garbage service charges assessed against Redington Towers. Redington Towers is the owner of a condominium apartment building consisting of 156 condominium apartments located in Redington Shores in Pinellas County. On January 23, 1974 appellee paid to the town $22,214 for the right to connect the condominium project to the sewer system. As of October 27, 1975 sixty-seven apartments were occupied and being used and the remaining eighty-nine apartments were not occupied or in any way being used. Since the completion of the condominium appellee has paid or tendered to the town the charges for sewer and garbage services applicable to apartments which were occupied.

Chapter 3, Section 5 of the Code of the Ordinances of the Town of Redington Shores provided that sewer service charges shall begin on the date the user is connected to the sewer main. The sole point presented on appeal to this court is whether the trial court correctly found that sewer charges may not be assessed on unoccupied, unused units in a condominium building which is connected to the sewer system. The trial judge ruled that “these 89 [unoccupied] units are not in any way benefitted by the sewer system of the Town of Red-ington Shores, and to require the payment of sewer charges would require the imposition of a tax, which the Court finds would be invalid.” We disagree and hold that the unoccupied units are subject to assessment.

Appellee argues that it would be an unconstitutional deprivation of its property rights to construe the city ordinance to cause appellee to be charged for unoccupied condominium units in that no benefit was received by appellee from any service to those units. The constitutional proscription against deprivation of property rights does not, however, extend to sewage charges which are reasonably related to the value received from “the service rendered either as actually consumed or as readily available for use . . ." Patton-Ferguson Joint Authority v. Hawbaker, 14 Pa.Cmwlth. 402, 322 A.2d 783, 786 (1974). See also, 61 A.L.R.3d 1236 (1975, Supp.1977). Appellee’s argument fails to consider that service is provided to each unit by the mere availability of use upon connection of the building with the sewage system. Furthermore, it is not necessary to restrict the term “use” to flow of sewage.

The realities of sewer maintenance and financing require that the availability of sewer services after physical connection has been made be interpreted as tantamount to actual “use.” . . . The occupancy or vacancy of the buildings upon real property subjected to a sewer connection or service charge is immaterial to the obligation of the owner to pay those charges once proof has been presented that the owner has connected to the system.

Lake Stevens Sewer District v. Village Homes, Inc., 18 Wash.App. 165, 566 P.2d 1256, 1262-63 (1977). Under the circumstances of this case we hold that each unit of the condominium building, whether occupied or unoccupied, is being provided a service and is subject to the applicable sewage rate.

We do not rule on any of the other issues presented to and as of yet undisposed of by the trial court.

Reversed and remanded for proceedings consistent with this opinion.

HOBSON and SCHEB, JJ., concur.

      . Appellee and the town agreed that the court’s resolution on the issue of the sewage fees would govern the rights of the parties on the issue of garbage fees on unoccupied units. We do not then consider the separate issue of assessment of fees for garbage services.

      . The parties entered into a pretrial statement which, among other things, set out six issues to be determined by the court. The manner in which the trial judge disposed of the controversy necessitated resolution of only one of those issues. Because we reverse his order, the other issues are now ripe for consideration.


text:
    Donald O. KING, Appellant, v. STATE of Florida, Appellee.
    No. 77-697.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, and Stephannie DaCosta, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However we agree with appellant that there are imperfections in his judgment and sentence. The present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. Finally, the judgment states that appellant entered a plea of guilty to the charge when in fact a jury found him guilty. We remand the case for correction of judgment and sentence, and appellant need not be present at that time.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.