author: JOHNSON, Judge. RAWLS, Chief Judge SMITH, Judge. RAWLS, Acting Chief Judge

text:
    Mary J. RODGERS and Glenn F. Rodgers, her husband, Appellants, v. W. T. GRANT COMPANY, a corporation, Appellee.
    No. W-243.
    District Court of Appeal of Florida, First District.
    June 30, 1975.
    Rehearing Denied Feb. 3, 1976.

      Luke G. Galant, for Dawson, Galant, Maddox, Sulik & Nichols, for appellants.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, for appellee.
   JOHNSON, Judge.

Appellants seek reversal of a final summary judgment in favor of appellee in a suit brought by appellants for malicious prosecution. The action arose as a result of appellee causing the issuance of a warrant against appellant, Mary J. Rodgers, charging her with having issued a worthless check to appellee in the amount of $5.14. There was a preliminary hearing before a Justice of the Peace and, after discussions which will be set forth below, appellant was bound over to the Criminal Court for prosecution. The case was “nol prossed” in the Criminal Court, and appellants instituted the present proceeding for malicious prosecution. The trial court granted appellee’s motion for summary judgment upon the ground that the matter of the existence of probable cause was adjudicated and determined by the action of the Justice of the Peace in binding the case over for prosecution. There being no showing of the existence of the necessary elements to support an action for malicious prosecution, the trial court entered summary final judgment for appellee. For the reasons hereinafter delineated, we agree and affirm.

A more specific recaption of the facts leading up to the present case is as follows.

Mary J. Rodgers, whom will hereinafter be referred to as “appellant,” bought merchandise from W. T. Grant Company in Jacksonville in September of 1971, for which she gave Grant a check in the amount of $5.14, drawn on Lake Forest Atlantic Bank, Jacksonville. Before appel-lee accepted the appellant’s check, she was required to show her driver’s license and to write on the check her telephone number, viz: 388-0608. Some seven or eight days later she closed out the account on which the check was drawn, and the balance was deposited in a different account, a checking account. The appellant then went to Grant’s on September 13, 1971, and advised the manager of the store, who it was later ascertained was Mrs. Bridges, that she had given the check which had not cleared and that it may be returned because she had closed the account. Mrs. Bridges, in her capacity as manager in as large a store as Grant’s in Jacksonville, routinely advised Mrs. Rodgers that if her phone number was on the check and the check was returned, she would get in touch with Mrs. Rodgers. The appellant, at that time, did not realize that she had given the wrong telephone number on the check, and therefore did not advise Mrs. Bridges that the phone number on the check was wrong.

The testimony taken before the Justice of the Peace in October of 1971, reveals the fact that when the check in question was returned to Grant’s bearing the notation of “account closed”, the credit manager or credit employee of Grant’s attempted to call Mrs. Rodgers about the check, but was advised that the telephone number on the check was not that of Mrs. Rodgers. It was also brought out that the correct telephone number of Mrs. Rodgers was 388-0806, but the employees of Grant’s had no way of knowing the number was mistakenly, but erroneously given as 388-0608. Although this error involved only the reversal of two digits of the telephone number, it cannot be treated as of small materiality when as a fact the error changed the telephone number enough that it would have amounted to several hundreds of numbers before the correct number of Mrs. Rodgers could have been ascertained. In fact, it could have reasonably been inferred by the credit manager that the erroneous phone number was given intentionally.

But be that as it may, when the bad check was processed through the Justice of Peace after service was made by the Constable, and the concerned parties were before the Justice of the Peace and the true ■facts had been aired, the Justice of the Peace was ready to dismiss the charge upon payment of only the amount of the check which was already paid and with the understanding that “that would end” the matter. Counsel for the appellant demurred about giving a release from future —(We think the court intended to add “trouble”).

The colloquy between the Justice of the Peace and counsel for the appellants can better depict the picture if quoted, to wit:

“THE COURT: In the interest of not letting something like this go to Criminal Court, and it will cost everybody, — if she is willing to pay this check this court at this time will withdraw the charges on the check, if you want to do it that way.
“MR. GALANT: Well, she is willing to pay it, Your Honor. She has already paid it if they will take her money, and then I would like to have the charges dismissed.
“THE COURT: If the charges are dismissed, at that time are you willing to give her clearance to give this lady a release from any future—
“MR. GALANT: I don’t think we are prepared to do that at this time, Your Honor.
“THE COURT: If we can’t clear this up today, — I mean, the court’s interest in this thing was clearing the whole thing up today. If we can’t clear it up today, I am going to bind it over to Criminal Court.
“MR. GALANT: Well, Your Honor, this matter of a release is utterly immaterial to these proceedings and has nothing to do with it. I submit there’s absolutely no intention — there is obviously no intention on the part of this lady to have-
“THE COURT: The only way, Mr. Galant, that we can take care of this now is with the complainant withdrawing the charge because the thing would have been taken care—
“MR. GALANT: She has already—
“THE COURT: The court doesn’t want to put either side in jeopardy, for that matter, so we will bind this over to Criminal Court on a proper bond.
“MR. GALANT: All right, Your Honor.
“THE COURT: There is a five dollar check. We will make it a five dollar bond.
“MR. GALANT: All right, sir.
“THE COURT: I imagine you will want to put up a cash bond.
“MR. GALANT: Yes, five dollars cash bond.
“THE COURT: All right, it will be a six dollars cash bond.
“MR. GALANT: All right, sir.”

It is clear to us that the first error was committed by-Mrs. Rodgers when she gave the wrong telephone number. The next error was when counsel for appellants was not ready to drop the matter. It is equally clear to us that Grant’s employees were not motivated by any malice nor any desire to punish appellants. The routine proceeding on a bad check charge was reasonably instituted when the telephone number given by the appellant was wrong and was enough to warrant this procedure. The Justice of the Peace and Grant’s were ready to stop. The Justice of the Peace tried to amicably settle a matter in his court, although the origin of the trouble began with the error of the appellants.

We conclude that the trial court was correct in granting the defendant’s (appel-lee’s) motion for summary judgment. The Supreme Court of Florida has held that the presence of probable cause was adjudicated when the Justice of the Peace held the appellant should answer the charges and probable cause was presumed from the official action. The Justice of the Peace could not try the case. He could and did try to get the charges dismissed, to which the appellee agreed, but since it could not be dismissed and not “put either side in jeopardy, for that matter”, we think all essence of any cause of action for malicious prosecution faded into nothing.

The final summary judgment in favor of appellee is, accordingly, affirmed.

McCORD, J., concurs.

RAWLS, C. J., dissents.

RAWLS, Chief Judge

(dissenting).

I dissent. It is elementary that in entering a summary judgment the trial court must conserve the facts in a light most favorable to the party moved against. I therefore recite the facts as I glean same from this record.

The facts are not disputed. On September 2, 1971, Mary J. Rodgers, in payment for a purchase, gave a personal check drawn on a special bank account to W. T. Grant Company. She had ample money in the bank at that time to cover the check. On September 8, 1971, Mary closed the special checking account and opened a regular checking account at the same bank. On September 13, 1971, she received a statement from her bank, together with her cancelled checks, but the check to W. T. Grant Company for $5.14 had not cleared. On that same date (September 13) Mary “went down to Grant’s” and advised its office manager, Dorothy Bridges, of the situation. Mrs. Bridges told Mary not to worry, and in the event the check was returned to the store, she would be notified.

At this stage, I pause to note that the majority places great emphasis on the fact that the telephone number given by Mary had two digits reversed and then squarely places full liability upon Mary for the ensuing gross conduct of Grant. It is significant that prior to instituting criminal proceedings that Grant neither called information to ascertain if Mary had a telephone nor attempted to contact Mary by mail or otherwise at her admittedly correct address which she had furnished to Grant.

Approximately one month later, on October 14, 1971, Grant’s agent “swore out a warrant” charging Mary with having issued a worthless check. Shortly thereafter, a constable knocked on Mary’s door, served a warrant, and advised her if she would take $22 to the Justice of the Peace that it would settle the matter. When Mary told her husband (appellant Glenn F. Rodgers) about her conversation with the constable, he said: “ . . . that there wasn’t no way that I was going to take that amount of money for that check, that it wasn’t right, and that there was no way that I had knowingly and willingly wrote a worthless check.” Mary then again went to Grant’s and talked to Mrs. Bridges, who stated that she remembered and when the check came back it seemed like the phone number was not right. Mary then told Mrs. Bridges about the paper, whereupon Mrs. Bridges said, “I am going to call out there and tell them that I am going to accept the money.” Mrs. Bridges called “the JP’s office” and after hanging up she advised Mary that “ . . . They have informed me I cannot accept the money.” Mary then left $5.14 laying on the counter, together with $2.00 to cover the returned check. On the next day another “paper” was served upon Mary.

The next episode is a hearing before the Justice of the Peace. Present at the hearing was Grant’s agent (the man that swore out the warrant), Mrs. Bridges, and Mary, who was accompanied by her bank’s bookkeeper and her privately retained attorney. At the conclusion of the hearing, the Justice of the Peace advised that the charges would be dismissed if Mary would agree not to bring any further charges against W. T. Grant. Mary’s attorney advised the court that he was not prepared to give a release, whereupon the court stated:

“ . . .1 am going to bind it over to Criminal Court . . . the only way, Mr. Galant, [Mary’s attorney] that we can take care of this now is with the complainant [W. T. Grant Company] withdrawing the charge . . . The Court doesn’t want to put either side in jeopardy, for that matter, so we will bind this over to Criminal Court on a proper bond.”

Although listening to the foregoing observations, W. T. Grant Company’s agents stood mute. Subsequently, the state’s attorney nolle prossed the charges against Mary.

Appellee agrees that appellants have correctly pointed out that a binding over by the Justice of the Peace does not always create a conclusive finding of probable cause. The elements for a malicious prosecution suit are succinctly stated in Liabos v. Harman, viz:

1) The commencement or continuance of an original civil or criminal judicial proceeding ;

2) Its legal causation by the present defendant against the plaintiff;

3) Its bona fide termination in favor of the plaintiff;

4) The absence of probable cause for such prosecution;

5) The presence of malice; and

6) Damages conforming to legal standards resulting to plaintiff.

As to the first and second elements, it is uncontroverted that one George L. Touch-ton, Jr., a general agent in Grant’s credit department, commenced the criminal proceeding by executing an affidavit on behalf of Grant. In addition, Touchton and Grant’s office manager, Mrs. Bridges, participated in pressing the criminal charge, resulting in the Justice of the Peace binding Mary over to the criminal court. The bona fide termination in favor of Mary satisfied the third element. It is only the fourth element that is questionable, because if there is an absence of probable cause, legal malice may be inferred.

The trial court in entering the summary judgment found:

“The plaintiffs, on the other hand, argue that the Justice of the Peace acted improperly in binding the case over. This is a matter of judgment behind which this Court is not permitted to go as there is in the file no allegation of proof of fraud, perjury, or other improper or corrupt means utilized in securing the binding over by the Justice of the Peace.” [Emphasis supplied]

The trial court then cites as its authority this Court’s opinion in Thompson v. Taylor, and the Supreme Court’s opinion in Gallucci v. Milavic. Likewise, appellee relies upon the foregoing cases. We note that in Thompson, supra, the Justice of the Peace determined that probable cause existed even after the store manager expressed doubts as to his identification of the accused. This Court, in its opinion, observed: “There is no showing here that O’Neal [store manager] resorted to fraud, perjury, or other improper means.” [Emphasis supplied.] Likewise, in Gallucci, supra, the Supreme Court in reviewing the question of probable cause observed that justification for instituting criminal procedure existed if the complainant entertained a reasonable ground of suspicion supported by circumstances strong in themselves to warn a cautious man that the accused was guilty. The uncontradicted facts in the instant case reflect “improper means” by Grant and circumstances that should warn any cautious man of the absence of probable cause.

Great Atlantic & Pacific Tea Company v. Federal Detective Inc. which also involved a bad check is in point. On behalf of A & P, one Sharp, of The Federal Detective Inc. swore out an affidavit charging Dewey Varner with passing a worthless check. Varner, after being released on bond, went to the A & P Store and requested that the charges be dropped. However, at no time did any official of A & P notify Sharp to drop the charges or attempt in any way to secure dismissal. The appellate court reasoned that the jury was at liberty to conclude that A & P took no steps to cause the charges to be dismissed, notwithstanding prior instructions not to institute legal proceedings, but rather permitted same to continue in hopes of receiving reimbursement for the “bogus” check.

The majority opines: “The next error was when counsel for appellants was not ready to drop the matter.” It is inconceivable to this writer that a citizen who has been hauled before a committing magistrate to face criminal charges instituted by a corporate giant, which through its agents activates the criminal process of our judicial system to collect a civil debt, has any duty to compromise such citizen’s rights and forego her constitutionally guaranteed “redress for injury”. The facts in this case might well be construed by a jury as to be such a callous disregard on the part of Grant’s agents in commencing and continuing the criminal prosecution even after the committing magistrate announced “ . . . the only way . . . that we can take care of this now is with the complainant withdrawing the charges. . . . ” Unlike the trial court, I find in this record facts that rebut the presumption of probable cause and create questions for the jury to decide.

I would reverse and remand.

ON PETITION FOR REHEARING

SMITH, Judge.

This case is before us on appellants’ petition for rehearing of the merits of an appeal which was tentatively concluded by a decision, Chief Judge Rawls dissenting, affirming the trial court. The petition for rehearing appeared to have merit and, at our request, counsel for the parties assisted us with reargument.

The trial court entered a summary final judgment in favor of appellee W. T. Grant Company in the Rodgers’ action alleging that Grant maliciously prosecuted Ms. Rodgers for the offense of knowingly issuing to Grant a worthless check in the amount of $5.14. See Sec. 832.05(2), F.S. 1973. The issue is whether, as the trial judge held, the action of Justice of the Peace Motes in binding Ms. Rodgers over to answer criminal charges was an effective determination, conclusive in this proceeding, that Grant had probable cause to institute the prosecution.

The trial Judge determined that the committal order of the Justice of the Peace was given conclusive effect on the issue of want of probable cause by the Supreme Court’s decision in Gallucci v. Milavic, 100 So.2d 375 (Fla.1958) and by this Court’s decision applying the rule of Gallucci in Thompson v. Taylor, 183 So.2d 16 at 19 (Fla.App.1st, 1966). The trial court therefore did not reach the question of whether, if the committal order were not to be given conclusive effect, the undisputed facts gave Grant probable cause to commence the prosecution. See Lewton v. Hower, 35 Fla. 58, 16 So. 616 (1895); Glass v. Parrish, 51 So.2d 717 (Fla.1951); but see Oosterhoudt v. Montgomery Ward & Co., Inc., 316 So.2d 582 (Fla.App.1st, 1975).

Some few days after Ms. Rodgers gave a $5.14 check to Grant in payment for merchandise, she and her husband closed the bank account on which the check was drawn and deposited the substantial balance in a new account at the same bank. When Ms. Rodgers discovered that the Grant check was not among the final group of cancelled checks clearing the old account, she went to Grant’s and advised the store manager that the check might be returned because the account had been closed. The manager advised Ms. Rodgers that, if her telephone number was on the check, the manager would notify Ms. Rodgers if and when the check was returned so that it could be made good. Neither the store manager nor Ms. Rodgers then realized that Ms. Rodgers had transposed two digits of her new telephone number when writing it on the check. When the check was returned, another employee of Grant’s tried unsuccessfully to telephone Ms. Rodgers at the erroneous number and, without attempting to reach Ms. Rodgers at the home address correctly written on the check, he complained under oath to Justice of the Peace Motes that Ms. Rodgers had knowingly issued a worthless check.

Process was served on Ms. Rodgers by a constable who advised her, according to her testimony, that she could dispose of the matter by paying the amount of the check and court costs, aggregating approximately $22. Mr. Rodgers declared to “his wife “that there wasn’t no way that I was going to take that amount of money for that check, that it wasn’t right, that there was no way that I had knowingly and willingly wrote a worthless check.” So Ms. Rodgers returned to Grant’s, talked again with the store manager and offered to pay the amount of the check and any bank charges resulting from its return. The store manager, after calling the office of the Justice of the Peace, advised Ms. Rodgers that “they have informed me I cannot accept the money,” whereupon Ms. Rodgers left cash in the amount of the check, plus $2 to cover costs, on the counter.

At the preliminary hearing before the Justice of the Peace, these facts were made known by Ms. Rodgers and her attorney and by the two representatives of appellee Grant. Without any apparent instigation by Grant employees, Justice of the Peace Motes announced at the conclusion of the hearing that the bad check charges would be dismissed if Ms. Rodgers would give appellee Grant a release. When Ms. Rodgers’ attorney declined, the Justice of the Peace replied:

“If we can’t clear this up today, — I mean, the court’s interest in this thing was clearing the whole thing up today. If we can’t clear it up today, I am going to bind it over to Criminal Court. . The court doesn’t want to put either side in jeopardy, for that matter, so we will bind this over to Criminal Court on a proper bond.”

The State Attorney dismissed the charges without further proceedings.

In Gallucci v. Milavic, 100 So.2d at 377-78, the Supreme Court held:

“[T]he presence of probable cause was adjudicated when the justice of the peace held that the appellant should answer the charges. This ruling was not an absolute rule but it raised a presumption of the existence of probable cause which could have been overcome by proof that the appellee had resorted to fraud or other improper means in securing the committal, and as a basis for the evidence it would have been necessary to allege that such was the case. In the complaint filed by the appellant he made no specific charge that the appellee had resorted to improper or corrupt methods in inaugurating the prosecution. He simply alleged that the appellee signed the original affidavits without probable cause, and that as a result of what the appellee did, without probable cause, the appellant was damaged.”

Our Supreme Court thus became committed to the proposition that, absent fraud or other “improper means” employed by the complainant in securing a committal order, such an order concludes the issue of want of probable cause and forecloses an action for malicious prosecution against the complainant. We followed the Gallucci decision in Thompson v. Taylor, 183 So.2d at 19, where there was “no showing” by allegations and proof that the complainatnt “resorted to fraud, perjury or other improper means” in the proceeding before the magistrate who bound the accused over to the criminal court. Applying the Gal-lucci rule, we held:

“Had there been proof that O’Neal [the complainant] actually knew that Taylor [the accused and later the plaintiff] had not committed the crime but remained silent as to this fact before the Justice of the Peace, and instead positively identified Taylor as the guilty person so that Taylor was prosecuted, then the situation might have warranted a finding of the element of absence of probable cause [notwithstanding the committal order].”

The inadequacy of the Gallucci rule, which accords virtually conclusive effect to a magistrate’s ruling, is plainly illustrated by this record. Under the law as given to us, Judge Motes’ order obliterates appellants’ cause of action irrespective of whether appellee Grant had probable cause to initiate the proceedings. Judge Motes’ order was hot obtained by perjury, fraud or, for aught that appears, any other improper conduct on Grant’s part. To be sure, Grant’s employees did not protest when Judge Motes announced his intention to commit Ms. Rodgers to the criminal court; but their deference was a natural, perhaps a proper, attitude for lay people to display in these circumstances. Surely their silence was not misconduct equivalent to fraud. ,We cannot assume, in the absence of allegations and proof, that Judge Motes’ order was the usual and predictable result of concerted action by which department stores use the criminal process to collect civil debts and justices of the peace protect the merchants from the adverse consequences of groundless prosecutions.

Ordering Ms. Rodgers bound over to criminal court, for her refusal to release Grant of what she considered a meritorious claim for malicious prosecution, was the kind of conduct that generates well-deserved contempt for the judicial process. And yet, under the Gallucci rule, we must perpetuate its effect because the misconduct was the court’s, not Grant’s. Gallucci is contrary to the principle generally observed in the courts of this country, that the order of a committing magistrate binding over or holding an accused for further proceedings’is merely evidence of probable cause which is to be considered with other evidence on that issue. Annot., 68 A.L. R.2d 1168, 1173 (1959); III Restatement of Torts § 663(2) (1938); Prosser, The Law of Torts (3rd ed. 1964) p. 865; 1 Harper and James, The Law of Torts § 4.5 (1956) at pp. 317-18. There is a useful analysis of the. issue and the cases in Mr. Justice Lusk’s opinion for the Oregon Supreme Court in Hryciuk v. Robinson, 213 Or. 542, 326 P.2d 424 (1958), in which that Court reexamined and receded from its own prior Gallucci rule.

Gallucci derived its rule from Lewton v. Hower, supra, 16 So. at 618, which held only that the trial court did not err in refusing to charge the jury, as requested by the defendant in a malicious prosecution case, that the magistrate’s commitment order “contradicts the charge of malice in the prosecution.” The Court held that the committal order was not an adjudication of the prosecutor’s motive “but only a determination that there was probable cause to hold the prosecuted.” Lewton did not hold that the magistrate’s committal order forecloses the issue of want of probable cause. Such a holding would have required reversal of the plaintiff’s judgment in that case.

In formulating the Gallucci rule the Supreme Court also invoked its decision in Goldstein v. Sabella, 88 So.2d 910 (Fla. 1956), which held only that a judgment of conviction concludes the issue of want of probable cause in a subsequent malicious prosecution action, notwithstanding reversal of the conviction. Unless the judgment was “reversed for fraud, perjury, or other corrupt means,” it was held, reversal does not destroy the conviction’s effect in determining that there was probable cause to prosecute. The Goldstein decision was entirely in keeping with the view of other authorities.

Malicious prosecution actions have historically been disfavored for their chilling effect on the prosecution of meritorious criminal and civil proceedings and because they continue, often with ill temper, finished litigation which ought to remain undisturbed. See generally Prosser, op. cit. at § 113, p. 859. But the tort has recently gained more favorable, even fashionable, status. Proof of its elements without more now opens the glittering way to punitive damages. Adams v. Whitfield, 290 So.2d 49 (Fla.1974). Revision of the Gallucci rule would remove another impediment to the successful prosecution of these actions, especially if juries are to be given a great-ter license than before to determine what constitutes probable cause. See Oosterhoudt v. Montgomery Ward & Co., Inc., 316 So.2d at 584. Clearly, then, sensitive decisions are now required of the judiciary in the formulation of remedies for malicious prosecution.

Although the Gallucci case did not involve asserted judicial misconduct, we nevertheless believe that our duty is to adhere to and apply the rule of that decision until it is modified by the Supreme Court. We cannot carve a judicial misconduct exception to the Gallucci rule without dealing with the question of who, judge or jury, is to decide whether there was judicial misconduct vitiating the effect of a committal order regular on its face. That is a grave question indeed, for it requires either a denial of a jury trial on a critical issue of fact or a direct assessment by the jury of the legitimacy of judicial action. The more attractive alternative — holding that the magistrate’s committal order is simply to be considered with all other evidence on the issue of probable cause — is not available to us under the Gallucci rule. Recognizing, however, that our decision gives conclusive effect to a committal order which evidently was an instrumentality of injustice, we certify to the Supreme Court that the question here passed on is of great public interest: Does the committal order of a magistrate import probable cause to prosecute and thus bar a subsequent malicious prosecution action, notwithstanding that the motive for its entry was to bar that action? Art. V, Sec. 3(b)(3), Florida Constitution; Hoffman v. Jones, 280 So.2d 431 at 434 (Fla.1973).

Affirmed.

McCORD, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I adhere to my original dissent which was filed in this cause on June 30, 1975.

      . Gallucci v. Milavic, 100 So.2d 375 (Fla. 1958).

      . Appellants had obtained a new telephone number because of moving to a new address. One digit of the phone number by the mistake of Mary was reversed. Tbe cashier who accepted tbe check at tbe time of the purchase on September 2, 1971, obtained the former address, the present address and information from Mary’s driver’s license.

      . Liabos v. Harman, 215 So.2d 487 (2 Fla. App.1968).

      . As we are here confronted with a summary judgment, the sixth element relating to damages must be considered as being admitted.

      . Wilson v. O’Neal, 118 So.2d 101 (1 Fla.App.1960); Azrikan v. O’Brien, 173 So.2d 711 (3 Fla.App.1965); Adams v. Whitfield, 290 So.2d 49 (Fla.1974); and Priest v. Groover, 289 So.2d 767 (2 Fla.App.1974).

        .Thompson v. Taylor, 183 So.2d 16 (1 Fla.App.1966).

      . Gallucci v. Milavic, 100 So.2d 375 (Fla. 3958).

      . Great Atlantic & Pacific Tea Company v. Federal Detective Inc., 157 So.2d 148 (3 Fla.App.1963).

      . Article X, Section 21, Constitution of the State of Florida.

      . Kilburn v. Davenport, 286 So.2d 241 (3 Fla.App.1973); and O’Brien v. Food Fair Stores, North Dade, Ine., 155 So.2d 836 (3 Fla.App.1963).

      . Hart v. Duncan, 233 So.2d 133 (4 Fla.App.1970), and Priest v. Groover, 289 So.2d 767 (3 Fla.App.1974).

      . The Rodgers’ complaint does not mention the committal order and so does not make allegations attempting to avoid its effect. Those omissions would ordinarily seem acceptable under pleading rules that do not require a complainant to anticipate and negate defensive matter. Livingston v. American Title and Ins. Co., 133 So.2d 483 (Fla.App.1st, 1961). The Rodgers’ pleading burden ordinarily would have been to allege want of probable cause, not to anticipate and impeach the evidence contrary to their position. But the rule of Oallucci makes those allegations essential. 100 So.2d at 377. See also our decision in Thompson, 183 So.2d at 19.

      . “The magistrate’s commitment of the accused is evidence that the person initiating the proceedings had probable cause.” Note h to the Restatement rule is: “In determining, what, if any, weight should be given to the commitment by a magistrate, the court should take into account evidence that the commitment was due to the misconduct of the magistrate or was procured by false testimony offered by the prosecutor or given in his behalf.” Ill Restatement of Torts, p. 414.

      . Restatement of Torts § 667(1) ; Prosser, op. cit. at § 113, p. 865; Harper and James, op. cit. at § 4.5, pp. 315-16, 54 C.J.S. Malicious Prosecution § 37 at pp. 999 et seq.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roderick W. CAMPBELL, Petitioner, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 75-929.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.

      Tracy E. Stafford and Robert W. Crawford, Fort Lauderdale, for petitioner.
    Geoffrey B. Dobson, Gen. Counsel, and George L. Waas, State Dept, of Transportation, Tallahassee, for respondent.
   PER CURIAM.

Upon due consideration we are of the opinion that the final order of the State Department of Transportation, respondent herein, entered on April 25, 1975, does not conform to the provisions of sec. 120.-57(1) (b) (10), Florida Statutes, 1974 supplement, which was in existence at the time said final order was entered. (See Chapter 74-310, Laws of Florida.)

The record reflects recommended orders entered by the hearing examiner containing findings of fact and conclusions of law. The agency’s order rejects the findings of fact made by the hearing examiner but fails to “state(s) with particularity in the order, that the findings of fact [of the examiner] were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law . .." (See also footnote 1, su pra).

It is clear from a reading of the agency’s order that its ultimate determination disallowing payments to the petitioner was based exclusively upon its own findings of fact rather than those of the hearing examiner without conforming to the procedures set forth in sec. 120.57(1)(b) (10). Accordingly, the final order is quashed and the cause remanded to the respondent for the entry of an order consistent with findings of the hearing examiner.

OWEN and MAGER, JJ, and STRAWN, DAVID U., Associate Judge, concur.

      . Chap. 74-310, enacted on June 25, 1974, became fully effective on January 1, 1975. Sec. 120.57(1) (b) (10), F.S., provides:
      “120.57 Decisions which affect substantial interests * * *
      (1) Formal proceedings. * * *
      (b) * * * * *
      (10) The agency may [accept] the recommended order [and adopt it] as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court, in reversing an agency’s order, finds that such agency action was done in bad faith or maliciously, the court may award attorney’s fees and costs to the aggrieved prevailing party.”

      . The hearing examiner found that petitioner’s business which was required to be vacated pursuant to a highway construction project was a sole proprietorship and that another business operated by petitioner at another location was a partnership ; the examiner concluded that the sole proprietorship “was not part of a commercial enterprise having at least one other establishment which is not being acquired by the state and which is engaged in the same or similar business” thereby entitling petitioner to certain payments under Part 19.e of Instructional Memorandum S0-1--71, implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.


author: SMITH, Judge.

text:
    William O. STANDLEY, Individually, et al., Appellants, v. J. Edwin WHITE and Hartford Accident and Indemnity Company, Appellees.
    No. X-35.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.

      Jackson G. Beatty, of Gregory, Towles, Beatty & Hood, and Hal A. Davis, Quincy, for appellants.
    E. Harper Field, Edgar Booth, Anne C. Booth, of Hall & Booth, and J. Marshall Conrad, Tallahassee, for appellees.
   SMITH, Judge.

Appellants are the surviving husband and children of a woman whose death was caused by the negligence of Joseph Johnson. Johnson drove his truck down the wrong side of a divided highway into a collision with the decedent’s automobile. Appellants’ action against appellee White asserted that Johnson was White’s employee engaged in the course of his employment at the time of the collision. A jury verdict resulted in a judgment for White.

Appellants’ principal contention is that the trial court erred in excluding evidence that immediately following the collision Johnson told trooper Raker, inquiring for purposes of preparing a traffic accident report, that he, Johnson, was on his way to work at White’s nursery at the time of the collision. The testimony was excluded as a communication privileged by § 316.066(4), F.S.1973. Appellants complain that it was inequitable to exclude trooper Raker’s testimony after admitting the testimony of officer Bowden that Johnson told him that he, Johnson, was going fishing at the time of the wreck. Trooper Bowden conducted the traffic homicide investigation but took no part in the traffic accident investigation. Johnson, who the record shows remembered few pertinent facts and was confused about those, gave these conflicting statements to the two officers on the same day, first to officer Bowden and, ten minutes later, to trooper Raker.

The court called Johnson as a witness during the presentation of appellants’ case and permitted both sides to cross-examine him. On direct examination by appellants’ counsel, Johnson testified that he was on his way to work at White’s nursery at the time of the collision. Counsel for White, on cross-examination, was permitted to lay the predicate for impeaching Johnson by inquiring whether Johnson had told officer Bowden that he was going fishing. When Johnson denied that, officer Bowden was permitted over objection to so testify during White’s case. That was proper. State v. Coffey, 212 So.2d 632 (Fla.1968); State v. Mitchell, 245 So.2d 618 (Fla.1971).

Notwithstanding the appeal of appellants’ argument on the seeming inequity of the result, we hold that the trial court properly admitted the homicide investigator’s testimony and excluded that of the traffic accident investigator. Sec. 316.-066(4), F.S.1973. Contrast Wise v. Western Union Tele. Co., 177 So.2d 765 (Fla. App. 1st, 1965). Even if the statute did not unambiguously require the ruling given, the statement attributed to Johnson by trooper Raker could not have been admitted as substantive evidence. Agency may not be proved by a declaration of the putative agent in the absence of the principal. Martin v. Johnson, 54 Fla. 487, 44 So. 949 (1907); Aerovias Panama, S.A. v. Air Carrier Engine Serv., Inc., 195 So.2d 230 (Fla.App.3d, 1967).

Affirmed.

RAWLS, Acting C. J., and MILLS, J., concur.


author: SCHEB, Judge.

text:
    James F. RYAN, Petitioner, v. Robert L. BROWN and the Florida Real Estate Commission, Respondents.
    No. 75-880.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 13, 1976.

      Benjamin T. Shuman, Orlando, for petitioner.
    Frank A. Wilkinson, Charles E. Felix and Vaughan David Hulse, Winter Park, for respondents.
   SCHEB, Judge.

Petitioner James F. Ryan seeks a writ of certiorari contending the respondent Florida Real Estate Commission departed from the essential requirements of the law in suspending his real estate registration. We agree with petitioner and grant the writ.

The question presented here is whether the petitioner’s refusal to show a tract of land to a black customer constituted a violation of a “duty imposed by law” under the Florida Real Estate License Law (Fla. Stat. Ch. 475) so as to authorize the respondent to suspend his real estate registration.

The petitioner is a real estate broker in Leesburg who deals in acreage and commercial properties. On May 10, 1974, he advertised a five acre tract of land for sale through a local newspaper. While not advertised as a homesite, the tract was located in a mixed agricultural and residential area. Under applicable zoning regulations the property could be subdivided into homesites, but no steps had been taken in that regard. Mrs. Lynum, a black person, telephoned petitioner and made an appointment for her and her husband to see the land. When the Lynums arrived at the petitioner’s real estate office, he asked if they were looking for acreage. When Mrs. Lynum replied, “Yes, we are,” he refused to show them the property. Racial motivation in failing to show the property is apparent from the record. Mrs. Lynum filed a complaint with the Leesburg Board of Realtors and on June 25, 1974, that Board determined the petitioner’s actions did not constitute any breach of ethics.

On October 18, 1974, the respondent Commission filed an information charging the petitioner with failure to show the property to the Lynums, contrary to Article I, Section 2, Florida Constitution, the 1968 Federal Fair Housing Act (42 U.S. C. § 3601 et seq.), and the Civil Rights Act of 1866 (42 U.S.C. § 1982), and alleging the petitioner Ryan was guilty of fraud, breach of trust, trick, scheme or device in a business transaction, and of a duty imposed upon him by law, all in violation of Fla.Stat. § 475.25(1) (a). Petitioner’s motion to quash the information was denied. Upon hearing, the petitioner acknowledged his refusal, stating that he was not required by law to show the property to anyone. The examiner determined the property met the federal definition of a “dwelling” under the Fair Housing Act, and the petitioner’s refusal to show it to the Lyn-ums because of their race constituted a breach of a duty imposed by law under Fla.Stat. § 475.25(1)(a). Exceptions to the examiner’s findings of fact and conclusions of law were overruled and on May 28, 1975, the respondent Commission adjudged the petitioner guilty pi violating Fla.Stat. § 475.25(1) (a), and suspended his real estate registration for 60 days.

On this petition our function is to examine the record to determine whether the Commission’s order was in accord with the essential requirements of law. See De Groot v. Sheffield, Fla.1957, 95 So.2d 912; Graham v. Fla. Real Estate Commission, Fla.App.2d 1960, 119 So.2d 88; and Ward v. Fla. Real Estate Commission, Fla.App.2d 1962, 141 So.2d 811.

Florida Statutes Ch. 475, which embraces the Real Estate License Law of this state charges the • respondent Commission with the duty of enforcing that law and disciplining registrants. Section 475.25 sets forth the grounds for revocation or suspension of a registrant’s license and provides, in part, as follows:

“(1) The registration of a registrant may be suspended for a period not exceeding two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:
(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction . . . ” (Emphasis supplied)

Within the context of that statute, a duty imposed by law must relate to a specific duty required of real estate registrants by applicable federal or state statutes. Here the respondent Commission determined th,e petitioner violated a duty imposed by the Fair Housing Act of 1968, an Act designed to provide for fair housing throughout the United States.

The Act makes it unlawful where on basis of race, color, religion, or national origin a person refuses to sell or negotiate for the sale of a dwelling or to represent that any dwelling is not available for inspection or sale when it is, in fact, so available. 42 U.S.C. § 3604(a) and (d). The Act broadly defines persons to whom applicable, 42 U.S.C. § 3602(d), and while the definition does not specifically refer to real estate brokers, the Act has been interpreted to apply to real estate agents in the sale and rental of housing. Zuch v. Hussey, E.D.Mich.1975, 394 F.Supp. 1028.

Dwelling is defined in § 3602(b) of the Act as follows:

“ ‘Dwelling’ means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.”

The respondent Commission did not allege or establish that the acreage involved here was offered for sale by petitioner for any particular purpose. While applicable zoning regulations permitted the property to be used for agriculture and residential uses, and the petitioner testified the Lynums had indicated some interest in subdividing, there was no evidence that the petitioner intended to market the land as homesites. The property was advertised as:

“5 acres of high wooded land on paved road in Lady Lake area. $3,000 per acre. 10 year terms.”

by the petitioner who specializes in sale of acreage. The president of the Leesburg Board of Realtors was familiar with petitioner’s business and testified he had never known him to sell or offer for sale a homesite, a home or anything of that nature. Another broker who served as chairman of the local Professional Standards Committee of the realtors testified to the same effect. And, while there is paucity of authority construing the term “dwelling” under the federal act, it was held in U. S. v. Mintzes, D.Md.1969, 304 F.Supp. 1305, that a vacant lot formerly improved with a multi-family dwelling and not offered for sale for any particular purpose was not a dwelling within the meaning of the Act. We have not overlooked the fact that while Mrs. Lynum testified she did not discuss prospective subdivision of the tract into homesites, the petitioner recalled some conversation by her to the effect that her husband had relatives in construction and they would be interested in subdividing the land into as many homesites as possible and building homes there with his relatives. Despite this, there was not competent substantial evidence to sustain the Commission’s finding that the tract of acreage was offered for sale in such a manner as to meet the definition of “dwelling” under 42 U.S.C. § 3602.

Where, as here, the duty imposed by law upon a registrant is based on a federal statute, that statute must be strictly construed just as is the case with any other penal statute. Allegations of the specific violation must be clearly stated and the proof against the registrant to be disciplined must be supported by competent and substantial evidence and not left to inference or speculation.

As we stated in Brod v. Jernigan, Fla.App.2d 1966, 188 So.2d 575, the respondent’s broad authority to supervise the privileged business of real estate brokers, which includes revocation or suspension of their licenses, must be cautiously and even sparingly utilized. The aim must be to discipline those who are dishonest and unscrupulous or who defraud the general public in handling real estate transactions. See also, Pauline v. Borer, Fla.1973, 274 So.2d 1. And, while one who engages in real estate business is and must be held to a high standard of trust and confidence, the license he holds is a valuable privilege which he has earned and it may be suspended or revoked only upon a showing by competent and substantial evidence that he has violated the provisions of Fla.Stat. Ch. 475.

Certainly no agency of government and no court condones discrimination on basis of race, color, religion or national origin. Elimination of discrimination in our society requires constant vigilance; however, we cannot judicially remove every bias from the minds of men. We must review each case on the basis of the law and the evidence and make our judgments accordingly. Our examination of the record under review reveals that the required standard of establishing a violation on part of the petitioner by competent and substantial evidence has not been met in these proceedings. Therefore, we conclude that the judgment of the respondent suspending the petitioner’s license departed from the essential requirements of the law and accordingly the writ of certiorari is granted and the decision under review is quashed.

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

      . Of these three authorities, the 1968 Fair Housing Act was the only arguable basis on which the respondent could base its contention that the petitioner breached a duty imposed upon him by law under Fla.Stat. § 475.25(1) (a), since neither the quoted constitutional provision nor the Civil Rights Act of 1866 impose specific duties on real estate agents.


text:
    Jack Y. SCOTT and Betty Sue Scott, Appellants, v. Fred H. TERRY and Clara Mae Terry, Appellees.
    No. Y-21.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 16, 1976.

      Harold F. Peek, Jr. and James E. Moore, Moore & Anchors, Valparaiso, for appellants.
    John R. Dowd, Fort Walton Beach, for appellees.
   PER CURIAM.

We have carefully considered the record on appeal, briefs filed by able counsel and oral arguments. Based thereon we do not find that the trial judge committed the procedural errors urged by appellants. Further, we find that there is substantial competent evidence in the record to sustain the final judgment here appealed. Finally, appellants urge that the principles announced in Durham v. Edwards, 1905, 50 Fla. 495, 38 So. 926, cited by both appellants and appellees, should be reexamined because of changes in general accounting procedures resulting from federal income tax laws which have come into being since the date of that decision. Assuming, arguendo, that appellants’ position is well taken, we have been stringently admonished that if principles announced by our Supreme Court are to be revisited, reconsidered, or revised, that prerogative rests exclusively with the Supreme Court and not with us. (See Hoffman v. Jones, Fla.1973, 280 So.2d 431). Accordingly, the judgment here appealed is

Affirmed.

BOYER, C. J„ and McCORD and MILLS, JJ., concur.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Charles B. BENENSON et al., Appellees.
    No. 75-872.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.

      Stuart Simon, County Atty., and William W. Gibbs, Asst. County Atty., for appellant.
    Steel, Hector & Davis, Miami, for appel-lees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The defendant, Dade County, appeals the denial of its motion to dismiss plaintiffs’ complaint for a declaratory judgment. The point presented is as follows: “Whether property owners are entitled to a declaration of their rights based upon alleged anticipated legislative actions which may or may not take place.” We hold that the point presented does not apply to the complaint filed, and we affirm.

The inquiry must be whether or not the complaint presented a prima facie case of an actual doubt as to the effect of, and plaintiffs’ rights under, actions already taken by the County. Cf. May v. Holley, Fla.1952, 59 So.2d 636; McLaughlin v. Metropolitan Dade County, Fla.App.1966, 191 So.2d 615.

The complaint alleges that the appellees are the owners and record titleholders of a, tract of land located immediately west of the Miami International Airport. In reliance upon the present Dade County zoning laws and pursuant to the approved master plan of development, the appellees have expended substantial sums of money and financial obligations in order to develop the above-mentioned tract of land as a modern industrial park and office building complex. The Aviation Department of Dade County (that operates the county-owned airport) has made a report entitled “Miami International Airport Compatibility Study.” The report calls for an expansion and modification of the airport facilities. In furtherance of this plan, an airport runway would be extended an additional 4,000 feet to the west, i. e., in the direction of the ap-pellees’ property. This proposed reduced distance between the appellees’ property and the contemplated extension to the runway would substantially reduce the allowable height of all structures permitted on the property under the present zoning laws. The Dade* Board of County Commissioners has adopted a “resolution” approving the compatibility study, which authorizes implementation of the provisions of the report. Based on the above, appel-lees are seeking a declaration of their property rights as affected by the resolution of the Board of County Commissioners.

Fla.Stat. § 86.011, on “Jurisdiction of circuit court,” provides: “The circuit courts have jurisdiction to declare rights, status and other equitable or legal relations whether or not further relief is or could be claimed.” Fla.Stat. § 86.021, on “Power to construe, etc.,” provides: “Any person claiming to be interested or who may be in doubt about his rights under a deed, will, . . . [etc.] ... or whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, . or by municipal ordinance, contract, deed, . . . [etc.] . . . may have determined any question of construction or validity .arising [thereunder] Fla.Stat. § 86.051, on “Enumeration not exclusive,” states: “The enumeration in sections 86.021, 86.031 and 86.041, Florida Statutes, does not limit or restrict the exercise of the general powers conferred in section 86.011, Florida Statutes, in any action where declaratory relief is sought.” Fla.Stat. § 86.101, on “Construction of law,” states: “This chapter is declared to be substantive and remedial. Its purpose is to settle and to ¿fiord relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations and is to be liberally administered and construed.”

The County urges that the allegations of the complaint relates exclusively to matters which had not yet taken place and which were not presently ascertained or ascertainable in that they are allegations of threatened future actions by the Board of County Commissioners which might or might not occur, or which might occur in a manner quite different from that anticipated by plaintiffs. See Charlotte County v. Venture Out in America, Inc., Fla.App. 1971, 243 So.2d 249.

We read the complaint as setting forth a present controversy. See Perry v. Genung, Fla.App.1964, 163 So.2d 54. The plaintiffs have a right to have determined the present status of their property as regards the legal effect of the actions already taken by the County. Cf. Hernandez v. Board of Commissioners of Hillsborough County, Fla. 1934, 153 So. 790. The factual allegations of the complaint must be taken as true upon the motion to dismiss. See United Homes, Inc. v. Moss, Fla.App.1963, 154 So.2d 351. The complaint alleges present plans for development of the affected lands. It also alleges a justifiable doubt as to plaintiffs’ legal rights under actions already taken by the County. See Sheldon v. Powell, Fla.1930, 128 So. 258.

The trial court did not err in refusing to dismiss the complaint.

Affirmed.


author: BOYER, Chief Judge. CAWTHON, VICTOR M., Associate Judge

text:
    Hannelore Faulk BRANDON, Appellant, v. James H. FAULK and Inez B. Faulk, Appellee.
    No. Y-93.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.

      Robert J. Mayes, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    J. LaDon Dewrell, Dewrell & Kessler, Fort Walton Beach, John C. Cooper and W. Dexter Douglass, Douglass & Powell, Tallahassee, for appellee.
   BOYER, Chief Judge.

This appeal emanates from a child custody dispute. Appellant and Landis Faulk were married in 1966. The next year, their child, Angela Elizabeth Faulk, was born. In 1971 a’ final judgment was entered dissolving the marriage and granting to the mother permanent custody of the minor child subject to visitation privileges reserved to the child’s father and paternal grandparents. The final judgment prohibited the changing of the residence of the minor child to any place outside of the First Judicial Circuit. In 1972, shortly after remarriage, appellant petitioned for permission to change the child’s residence from the First Judicial Circuit. Appellees (the child’s paternal grandparents) filed a petition for modification, seeking the child’s custody. The trial court denied both petitions whereupon an appeal was taken to this Court which affirmed without prejudice to a renewal by appellant of her petition for modification. (See Brandon v. Faulk, Fla.App.1st 1974, 287 So.2d 714)

In September of 1974 appellant filed a second petition for modification and appel-lees responded with a counter-petition. At the hearing held on those petitions it was established that appellant’s new husband, Richard Brandon, owns and operates a trucking business and that in January of 1973 his primary route was changed to a run from New Orleans to San Francisco. Because of the route change Mr. Brandon was unable to spend more than a few days each month in Florida and the final judgment prohibited the changing of the child’s residence outside of the First Judicial Circuit. The evidence further revealed that in order that Mrs. Brandon spend time with her husband she accompanied him on his route during 1973, being absent from the state a total of 117 days. They have now established a home in Texas. Appellant testified that in an attempt to comply with the above mentioned opinion of this Court she voluntarily allowed appellees temporary custody of the subject child until she could renew her request for permission to remove the child from the First Judicial Circuit.

Following hearings on the renewed petitions of the parties the trial judge entered the order here appealed. Rather than paraphrasing that order and summarizing the evidence giving rise thereto, we have decided to quote the order in its entirety. It provides as follows:

“This cause is again before the Court on the issues of the minor child herein, Angela Elizabeth Faulk, age 9. This Court entered a final judgment on June 14, 1971, which stated in part:
‘2. That the plaintiff and defendant are each fit and proper persons to have the care, custody and control of the minor child. That the defendant has acted with some impropriety and that her conduct has caused the Court some concern with respect to the custody of the child, but the weight of the evidence fails to show any parental irre-ponsibility and on the contrary, shows that she is a very competent and atten-tative mother to the child.
‘3. That the parental grandparents of the minor child, namely James H. Faulk and Inez B. Faulk, have intervened in this cause seeking custody of the child. The evidence clearly shows them to be model citizens with an excellent reputation. The Court was impressed with their candor and character, and finds beyond question that they are fit and proper persons to have the custody of the child and financially able to more than adequately provide for it. However, the law is well established, and wisely so, that the best interest of a child of tender years can be served by the mother unless the mother is shown to be an improper person for such responsibility.
‘ . . . The custody of the child vested in the defendant is subject to the express limitation that she shall not change the residence of the said child from the First Judicial Circuit, and that she shall not remove the child therefrom for more than seven consecutive days at any one time without prior approval of the Court.’
“Since that time, this cause has been continuously before the Court on this issue up to the present time in which the Court heard lengthy testimony on December 13, 1974 and January 10, 1975. Both the mother and the father of the minor child have remarried. The plaintiff-mother remarried on September 15, 1972 and now resides in the State of Texas. On December 5, 1972, this Court stated:
T want to announce once more for the record, gentlemen, that the Court entered. this final judgment with some reservations and some concern, and mentioned in the judgment, without trying to be critical or overly critical, that the Court had some concern about the awarding the custody to Mrs. Brandon, and it’s expressed in the judgment, and that was one of the reasons for the provisions of restricting the child to the First Judicial Circuit. And, another reason, and the judgment so states, that the grandparents are upstanding citizens in the community, and that they would be excellent people to have the custody of that child, but the Court gave all benefit of the doubt to the mother, but it had a specific purpose in limiting it to the First Judicial Circuit for residence. Now, the undercurrents — it would be my advice to all parties that undercurrents ought to be stopped. This child which all of you are so vitally interested in needs the guidance of all of you and the friendship. It’s true there’s some strong feelings between the parties, but no one can cure that, but this Court can cure it if it’s expressed around that child, and that’s the reason I gave some specific instructions for that judgment as I recall it for the order over in Milton. There would be no expression or criticism from any parents, grandparents, around that child to influence. In other words, if they want to get off and invoke the wrath of Heaven on each other, just do it out of the presence of that child because that child is entitled to grow up with a normal feeling toward its mother, father, and grandparents, and it’s real simple. Now, gentlemen, the Court is not going to change that residence requirement. That was a condition and it was well thought at the time, and the Court feels it’s for the best interest of the child and that’s the order of the Court.’
“On February 13, 1974, the petitioner-mother surrendered the temporary care and custody to the paternal grandparents, James H. Faulk and Inez B. Faulk, by written consent which was confirmed by order of this Court on February 20, 1974. Upon consideration of the evidence before the Court at this time, the Court adheres to its original findings set forth in the Final Judgment as quoted above which summarized is, that the natural mother, natural father, and paternal grandparents are all fit, competent, and proper persons to have the custody of the said child. Each parent has remarried and has an adequate home and facilities to care for the child. The Court does find from the present evidence that the petitioner-mother, during the year 1973 and until surrendering custody to the grandparents on the 13th day of February, 1974, left the child with a babysitter while she was on trips outside of the State of Florida for a total of one hundred and seventeen (117) days, consisting of periods of time from a minimum of seven (7) days to a maximum of twenty (20) days. The interest in this child by all of the parties is commendable and refreshing to the Court in contrast to numerous instances of disinterest by parents that confront all courts all too frequently. This Court is cognizant and appreciative of the well-established law in our state that absent other considerations, natural parents should be given preference over other relatives and third parties in the custody of minor children. It is significant, however, in this case that the grandparents place their interest in the welfare of this child, the education of this child, her health and happiness, in first priority above every other factor in life. On the other hand, the petitioner-mother does not attach the same priority. The Court finds and determines that this child is happy, well-adjusted, carefully watched and attended to, and the Court finds and so determines that the best interest and welfare of this child shall be served by vesting the permanent care, custody, and control of her in the parental grandparents. This provides an equal opportunity of accessibility to the natural mother, the natural father and through these custodians, the family ties and relationships of each parent and the grandparents can be achieved with has been an objective of this Court throughout these lengthy proceedings
“Therefore, it is ORDERED, ADJUDGED; and DECREED:
“1. That the permanent care, custody and control of the said minor child is vested in the paternal grandparent’s, James H. Faulk and Inez B. Faulk, subject to the express limitation that they shall not change the residence of the said child from the First Judicial Circuit, and that they shall not remove the child therefrom for more than seven (7) consecutive days without prior approval of the Court.
“2. The natural mother and the natural father shall have the right of reasonable visitation under reasonable circumstances at all times.
“3. That the natural mother shall also have the child during the third weekend of each month from 5:00 o’clock P.m. on Friday until 6:00 o’clock P.M. on Sunday, and in any month that the third weekend is not convenient, the said mother may elect a different weekend by giving the grandparents ten (10) days advance written notice.
“4. The natural mother shall have the custody of the child for the entire month of July of each year and the natural father shall have the child for one week during the summer at a time arranged with the grandparents. The reason for this differential is that the Court feels that the father will have more of an opportunity to visit the child more frequently.
“DONE AND ORDERED in Chambers in Okaloosa County, Florida, this 10th day of March, 1975.”

Appellant urges two points for reversal: First that the trial court erred in denying her petition for modification of the final judgment by which she sought to eliminate the restriction as to the child’s residence, and second that the trial court erred in determining that there had been such a change in circumstances as to justify modification of the custody provision of the final judgment.

We recognize, as did the learned experienced trial judge, that this case, like most custody disputes, is extremely difficult and has no ideal solution. The emotions and lives of many persons are affected. However, in such situations the best interests of the minor child is of paramount consideration and is the guiding pole star. (Brust v. Brust, Fla.App.1st 1972, 266 So.2d 400, cert. den Sup.Ct.Fla.1972, 271 So.2d 142; Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So.2d 22) In reviewing orders relating to custody of minor children appellate courts are required to afford great weight to the findings and determinations of the trial court. (Dinkel v. Dinkel, supra) In light of the evidence, though the points presented are admittedly close, we do not find that the challenged restriction against changing the child’s residence was either unreasonable nor an abuse of discretion. Further, we find that there was sufficient substantial competent evidence of change in circumstances and as to the best interests of the child to sustain the modification of custody. Accordingly, the order here appealed is

Affirmed.

MILLS, J., concurs.

CAWTHON, VICTOR M., Associate Judge, dissents.

CAWTHON, VICTOR M., Associate Judge

(dissenting).

I respectfully dissent from the majority opinion because I consider that this court established the law of the case by saying when this case was last before it “in the absence of some circumstances making the natural mother an incompetent and unat-tentive mother, the normal custody would be awarded to the mother.” Brandon v. Faulk, Fla.App. 1st 1974, 287 So.2d 714.

Later in the same opinion it was implied that the modification would be granted if the mother’s present marriage existed until December 1, 1974.

The record shows the continued existence of the marriage and the only circumstances it reveals that would make the mother “unattentive” would be cured by the modification she requests; i.e. the removal of the residence restriction.


text:
    Walter LAVERS and Charles Singley, Petitioners, v. STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, Respondent.
    No. Y-243.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.

      Selig I. Goldin of Goldin & Turner, Gainesville, for petitioners.
    Robert L. Shevin, Atty. Gen., Edwin J. Stacker and William R. Hanley, Asst. Attys. Gen., for respondent.
   SMITH, Judge.

In deciding this case which brings here for the first time the Florida Deceptive and Unfair Trade Practices Act, ch. 73-124, Fla.Laws, §§ 501.201-.213, F.S.1973, we tread lightly to avoid substantial questions, not briefed in this case, concerning the extent and character of the power seemingly delegated in the Act to the Department of Legal Affairs.

Petitioners Lavers and Singley seek review of an order of a hearing officer of the Department of Legal Affairs which the Attorney General, head of that Department, modified on review pursuant to §§ 501.207 and 501.208, F.S.1973. The order as modified commands Lavers and Singley to cease and desist from certain conduct complained of by the Department and finds that probable cause exists for the Department to sue Lavers and Singley for money damages “on behalf of one or more of the consumers” adversely affected by the practices complained of. The petition for review is before us in accordance with § 501.208(3), F.S.1973, which invokes the Administrative Procedure Act, § 120.68, F. S.1973 (1974 Supp.).

Lavers owns an office building and adjacent parking lot, intended only for the occupants of that building, in Gainesville. He posted the lot with three or four signs declaring that the lot is private property, that trespassers would be prosecuted and that unauthorized vehicles parked on the lot would be towed away at the owners’ expense. When unbelieving trespassers nevertheless helped themselves to available parking, Lavers called petitioner Singley, operator of Night & Day Highway Service in Gainesville, who towed the offending vehicles to his place of business and required the owners to pay tow and storage charges of $50 and more in order to obtain release of a vehicle.

Conceiving that the conduct of Lavers and Singley constituted “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” proscribed by § 501.204, F.S. 1973, the Department of Legal Affairs issued a complaint against Lavers and Sin-gley charging:

“Respondent’s lot is marked in such a way that consumers entering the lot are likely to miss the notice on the sign. Said lack of prominent notice constitutes a deceptive act.”

The Department charged that:

“ . . . consumers are deceived into believing that the lot in question is not posted and that lack of adequate notice to the consumers should not subject them to exorbitant towing fees.”

The Department served notice that its purpose was to order Lavers and Singley to cease and desist, in accordance with § 501.208, and to determine that there is probable cause for the Department to maintain an action on behalf of one or more consumers for their actual damages, as contemplated by § 501.207, F.S.1973.

Before a hearing was had on the Department’s complaint, the District Court of Appeal, Third District, decided Murrell v. Trio Towing Service, Inc., 294 So.2d 331 (Fla.App.3d, 1974), a civil action for conversion which involved similar practices in Miami. That court exonerated the owners of the parking area from liability to the intruder, but held that he who tows away the intruder’s vehicle gains no possessory lien in the towed vehicle and, consequently, that the tower’s demand for payment of fees as a condition to return of the intruder’s vehicle constitutes a conversion for which money damages, both compensatory and punitive, might be sought by the intruder. After the Murrell decision and still before the administrative hearing below, a private action was brought in the circuit court in Gainesville by one of Laver’s intruders. It resulted in an injunction, on the strength of Murrell, broadly enjoining Lavers and Singley from withholding any towed vehicle from the owner for nonpayment of charges for towing and storing and from representing to prospective intruders by signs or otherwise that towed cars will not be delivered until towing and storage charges are paid. Lavers and Singley apparently acquiesced in the injunction, and neither the propriety of the injunction nor of the court’s reliance on Murrell is before us.

Because Lavers and Singley were already restrained by court order from engaging in conduct like that in Murrell the Department’s counsel acknowledged before the hearing officer that a cease and desist order pursuant to § 501.208 would be entirely superfluous. But he pressed for a determination, pursuant to § 501.207, that there is probable cause for the Department to sue Lavers and Singley for damages sustained by various persons whose cars they caused to be towed away. The Department clearly abandoned the only claim of an unfair or deceptive act set forth in the complaint, that Lavers’ signs gave inadequate notice of the consequences to trespassers.

Although the Department and the cabinet were directed by § 501.205, F.S.1973, to adopt rules “which prohibit with specificity acts or practices that violate this part . . .,” no rule has been adopted which remotely describes the conduct here complained of as an unfair method of competition or an unfair or deceptive act or practice in the conduct of a trade or commerce.

Having before her no standard by rule or otherwise defining the conduct of Lav-ers and Singley as an unfair or deceptive act or practice in the conduct of a trade or commerce, the hearing examiner made no finding that their conduct constituted such an act or practice. She found, nevertheless, that probable cause exists for the maintenance by the Department of an action for damages on behalf of “one or more” unnamed persons.

The Attorney General, on review of the hearing officer’s order [§ 501.208(1), F.S. 1973], modified it only by noting that the circuit court had refused the Department leave to intervene in the private civil action in which the injunction was issued, and by adding a cease and desist order in terms copied verbatim from the order of the circuit court. The effect of the cease and desist order is to trigger civil penalties of up to $5,000 for each violation. Sec. 501.208(8), F.S.1973.

The Department, having promulgated no rule which would tend to notify Lavers and Singley that their conduct was proscribed by § 501.204, evidently relies entirely on the Murrell case to carry the day. But Murrell exonerated the owner entirely, and against the towtruck operator it made no finding that his conduct was an unfair method of competition, or that it was an “unfair” way of doing business, or that it was ’“deceptive.” Murrell decided only that, since no possessory lien could exist without statute or the owner’s consent, it was tortious to withhold an owner’s car on the condition of payment.

In Federal Trade Comm’n. v. The Sperry and Hutchinson Co., 405 U.S. 233, 248, 92 S.Ct. 898, 908, 31 L.Ed.2d 170, 182, the Supreme Court declared:

“A court cannot label a practice ‘unfair’ under [the Federal Trade Commission Act]. It can only affirm or vacate an agency’s judgment to that effect.”

In that case, too, the FTC opinion lacked findings sufficient to predicate a conclusion of “unfair” practices; there, too, no standards for judging the questioned conduct were referred to or developed in the administrative order. The decision in Murrel cannot, therefore, supply the missing standards and findings in this case.

The Department made written and oral charges in the proceedings under review that the posted signs were deceptive and that the tow charges made were grossly exorbitant. If proved, these allegations might.have supplied findings of unfairness, given proper standards. But those charges were not proved and no findings were made in respect to them. Proof that Lav-ers customarily received $15 of the towing and storage fees collected from the intruders does not, of itself, supply “unfairness” absent a standard.

The order under review lacks essential findings based on ascertainable standards of what is proscribed by § 501.204, F.S. 1973. The petition for certiorari is granted and the order reviewed is set aside.

BOYER, C. J., and MILLS, J., concur.


text:
    John Edward O’BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. Z-137.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald R. Knight, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

The issue is whether the trial court erred in holding that O’Bryan was not denied a speedy trial. Rule 3.191(b)(3), R. Cr.P. Reserving the right to appeal on that issue, O’Bryan pleaded nolo contend-ere to a charge of escape committed in Es-cambia County on September 4, 1973.

Little more than a month after his ex-cape, O’Bryan was convicted of petit larceny in Tennessee and was sentenced to confinement there for one to three years. While O’Bryan was so confined, an Es-cambia prosecutor filed an arrest warrant as a detainer with the Tennessee authorities in order to secure O’Bryan’s eventual appearance, at the end of his Tennessee term, for trial on the Florida charge. On July 19, 1974, in a letter responding to an inquiry by O’Bryan’s public defender counsel in Memphis, the Escambia prosecutor stated that Florida wished to try O’Bryan for escape, that arrangements could be made to return O’Bryan to Florida for trial within thirty days of his waiver of extradition and that:

“If Mr. O’Bryan wishes to waive extradition, please contact me and I will have the Sheriff of Escambia County transport Mr. O’Bryan back to the jurisdiction of this county.”

The record reflects no further development for nearly three months. On October 11, 1974, O’Bryan filed a speedy trial motion with the clerk of the Escambia court. Again there was no activity. Then, on March 8, 1975, 148 days after O’Bryan’s demand for speedy trial, he waived extradition by signing a form which was evidently supplied him by Tennessee authorities. On March 14, his Tennessee term having just expired, O’Bryan was transported to Es-cambia County by Florida authorities. On April 14, 185 days after the filing of the demand for speedy trial, O’Bryan’s counsel filed a motion for discharge, which the court below denied. The plea of nolo con-tendere, the judgment, sentence and this appeal followed.

Rule 3.191(b)(3), R.Cr.P., and our Supreme Court’s antecedent decision in Dickey v. Circuit Court, etc., 200 So.2d 521 (Fla.1967), provide the standard by which we judge this appeal. The Supreme Court promulgated Rule 3.191 as an emergency measure when the legislature enacted ch. 71-1 (B), § 6, Fla.Laws, which codified the constitutional speedy trial guaranty and called for court rules by which speedy trials might be realized. Art. I, § 16, Fla. Const.; § 918.015, F.S. 1971; In re Florida Rules of Criminal Procedure, 245 So.2d 33, 35 (Fla.1971). The Rule provides in part:

“. . . After the demand has been filed, such person is entitled to trial within [six months] . . . commencing after the prosecuting attorney has filed a detainer or has otherwise attempted to secure the presence of the accused for trial or within a reasonable time as determined by the court if the prosecutor has not acted in response to the demand for trial' . . ..”

Like many practical tests formulated to answer stubborn constitutional questions, Rule 3.191(b)(3) has ambiguities in application. The quoted segment of the Rule is, in its complexity, a garment woven of a single thread. Grasping either end of it, we find ourselves bound to wind up the whole of it.

The period for speedy trial is made to commence on the concurrence of the foreign prisoner’s demand for trial and the State’s filing of a detainer warrant or other attempt “to secure the presence of the accused for trial.” In this, the Rule is entirely consistent with and is no doubt largely derived from Dickey, 200 So.2d at 525:

“. . . If Florida files a detainer warrant, it has an obligation to act affirmatively to give the accused prisoner a speedy trial on such charges when requested to do so by the prisoner.”

Unaccountably, however, after giving such importance to the moment when both the State and the accused have formally signified a desire for a trial, the Rule seems to envision that the detainer will invariably be filed after and “in response to the demand for trial.” The opposite sequence of detainer/demand, which occurred in Dickey and in this case, would seem more natural and therefore more frequent. Is it conceivable that our Supreme Court intended that the trial be had within six months certain from the filing of a detainer after and in response to a demand for trial, but only “within a reasonable time as determined by the court,” or perhaps within some other period not mentioned by the Rule, when a detainer is filed before the foreign prisoner demands trial in Florida ?

' This ambiguity and others may be satisfactorily resolved, we believe, by reading Rule 3.191(b)(3) in light of Dickey, from which the Rule evidently derived words and phrases as well as concepts. Dickey makes it clear that the same consequences attach under the Florida and United States Constitutions regardless of the sequence of detainer and demand. There is no reason to attribute a different purpose to the Rule.

In this case, the filing of the de-tainer warrant preceded and no doubt precipitated the demand for speedy trial. When those two events occurred, they constituted a mutual commitment by the State and O’Bryan to try the case. The Rule then operated to assure that the trial would be a speedy one.

After the detainer warrant was filed and before O’Bryan demanded a speedy trial, neither Constitution nor Rule required the State to move with the same diligence toward trial as is necessary when the accused is in the State’s custody or otherwise under its restraint. The detainer warrant is not equivalent, for purposes of speedy trial considerations, to an arrest on indictment or information. State ex. rel. Williams v. Eastmoore, 297 So.2d 572 (Fla.App.1st, 1974); contra, Hargrove v. State, 281 So.2d 390 (Fla.App.2d, 1973), and State v. Sutton, 269 So.2d 712 (Fla. App.2d, 1972). The most pressing burden which a speedy trial alleviates is that which results from pretrial incarceration. Barker v. Wingo, 407 U.S. 514, 532-33, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118 (1972). To request another sovereign to make its prisoner available at the end of his sentence does not newly imprison the accused. Our Rule therefore does not extend speedy trial benefits to a foreign prisoner until he demands those benefits. Perez v. State, 283 So.2d 575, 576 (Fla.App.4th, 1973), cert. den. 289 So.2d 739 (Fla.1974).

A warrant filed as a detainer may nevertheless substantially prejudice a foreign prisoner by eliminating the possibility of his parole, reducing his privileges in custody, hampering his rehabilitation and increasing his sense of despair. Dickey, 200 So.2d at 527; Barker, 407 U.S. at 533, 93 S.Ct. at 2193, 33 L.Ed.2d at 118; ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 272 (1974). So, when a foreign prisoner responds to a detainer by demanding a speedy trial or when a Florida prosecutor responds to a trial demand by filing a de-tainer, Dickey and the Rule assure that the Florida trial will be had within six months, subject to the Rule’s extension and waiver provisions. Rule 3.191(d)(2) and (3), (e), (f), R.Cr.P.

The need for a firm decision to prosecute an information to trial or not is less urgent when the accused is imprisoned by another sovereign than when the accused is in Florida under pretrial custody or restraint. After a demand for speedy trial is made by a foreign prisoner, therefore, a Florida prosecutor may elect under the Rule to file no detain-er and make no similar response which would commit the State to a six month trial deadline. The prosecutor may be influenced in his decision by such factors as the temporary unavailability of prosecution witnesses, the need for more investigation, the inconvenience and expense of sending for and returning a foreign prisoner before the end of his term and the low priority of the case among others on a crowded docket. See Dickey, 200 So.2d at 525. If the Florida prosecutor determines not to file a detainer warrant or otherwise respond to the demand, or if he does not seasonably decide whether and how he shall respond, Dickey and the Rule will place the case among those to be tried, not within six months certain, but “within a reasonable time as determined by the court.”

Such an election by the prosecutor may gain the State more than six months in which to try the accused, but it correspondingly shifts from the prisoner to the State the risk that critical defense witnesses may die, disappear or forget, that tangible evidence of innocence may be lost or that the accused may otherwise be prejudiced — all of which will bear heavily in the court’s later determination of whether the State commenced the trial within a reasonable time. Dickey v. Florida, supra n. 1, 398 U.S. at 38, 90 S.Ct. at 1569, 26 L.Ed.2d at 32; Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

In the case before us, there being a concurrence of a detainer and a demand, O’Bryan was entitled to a trial within six months unless the time was extended by the court or O’Bryan deprived himself of the Rule’s benefits. No extension order was timely sought by the State, so no extension occurred. Rule 3.191(d)(2), R.Cr. P.; Mullin v. State, 307 So.2d 829 (Fla.App.3d, 1975).

The significant evidence on the question of O’Bryan’s self-deprivation of the Rule’s benefits is that the Escambia prosecutor and the Memphis public defender, O’Bryan’s counsel, discussed a speedy trial even before O’Bryan filed his demand. The prosecutor wrote a letter on July 19, 1974, expressing assurance that the State could and would bring O’Bryan to Florida for trial within thirty days after he waived extradition. O’Bryan was in fact brought to Florida promptly after he waived extradition on March 8, 1975. Counsel have submitted argument here on whether this evidence, without more, constitutes proof that O’Bryan refused to execute a waiver before March 8, 1975, thus disqualifying him from earlier benefits under the Rule. We need not decide the difficult evidentiary question of whether O’Bryan earlier “refused” to sign a waiver, for subsections (b)(3) and (e) of the Rule require in broader terms that O’Bryan have been “continuously available for return to this jurisdiction for trial” during the six month period beginning with the filing of his demand for trial. Because the State is obviously not required to extradite an unwilling foreign prisoner in order to satisfy his speedy trial demand, the burden was upon O’Bryan to make himself continuously available for voluntary return to Florida by executing or by standing ready to execute a waiver of extradition.

When proof was made that neither O’Bryan nor his counsel responded for 149 days to the Escambia prosecutor’s letter of July 19, 1974, the State had satisfied its duty under Rule 3.191(e) :

“A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of nonavailability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.” (Emphasis added.)

The State presented evidence tending to show that O’Bryan was unavailable for a Florida trial because he was as yet unwilling unconditionally to waive extradition. That evidence cast on O’Bryan the burden to explain his failure to waive extradition promptly. The State was not required to prove a chain of custody, from the Escam-bia prosecutor to O’Bryan, of the letter inviting O’Bryan to waive extradition, nor to import witnesses from Tennessee to demonstrate O’Bryan’s knowledge and his state of mind concerning waiver of extradition. O’Bryan’s general allegation that he had been available for trial was not substantiated.

Having been unavailable for trial in Florida during a substantial part of the six month period which began with the filing of his demand and having failed to show that the time that elapsed during his subsequent availability was unreasonable, O’Bryan’s motion for discharge was properly denied.

Affirmed.

BOYER, C. J., and MILLS, J., concur.

      . The subsequent history of the case is told in Dickey v. State, 215 So.2d 772 (Ma.App. 1st, 1968), rev’d 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).

      . A detainer having been filed in this case, rve need not explore whether the prosecutor “has otherwise attempted to secure the presence of the accused for trial.” By this the Rule seems to contemplate action, perhaps less formal than the filing of a detainer, which similarly constitutes notice of a State commitment eventually to try and not to abandon the outstanding charge. Clearly the quoted language does not refer exclusively to diligent attempts to secure the presence of the accused for a speedy or imminent trial. That construction would anomalously begin the running of the critical six month period only when, months after the demand for speedy trial, the State finally gears up to provide it.

      . Having by Rule made mutuality of commitment toward trial the difference between a trial in six months and one within a “reasonable time,” it seems doubtful that, without the accused’s consent, our Supreme Court would now permit the State to withdraw a detainer once lodged in order that the case might proceed more leisurely. The Court’s description of such an option in Dickey, 200 So.2d at 527, antedated the Rule and its concept of alternative periods before trial.

      . Our Rule does not suggest speedy trial standards applicable when the foreign prisoner does not demand a trial and the Florida prosecutor does not file a detainer. We do not comment on the prosecutor’s duty in these circumstances except to point out that the prisoner’s silence may be due to his ignorance of the charge. The ABA Standards on Speedy Trial, which we may say seem generally less flexible than our Rule, would require immediate notification of the accused if the prosecutor knows he is imprisoned elsewhere. ABA Standards, Speedy Trial § 3.1(a) (1968).

      . The prosecutor’s election must surely be exercised seasonably after the demand for trial. The Rule would be frustrated if the prosecutor could delay his decision unnecessarily and unreasonably, thus postponing the commencement of the six month trial period, if his election finally is to file a detainer. In deciding Dickey, our Supreme Court had no reason to think of the relatively fixed periods for trial later provided by Rule, but the Court’s requirement that the State “must initiate action” in response to a demand for trial suggests that promptness is required of the State in electing under the Rule. 200 So.2d at 525.

      . Rule 3.191(b)(3) does not say whether the court’s determination of a reasonable time for trial is made prospectively, on application of one of the parties, or retrospectively, when a trial is in the offing and the full length and consequences of the delay are known. Subsection (d) (2) of the Rule contemplates that a period fixed by the Rule be extended for cause prospectively and within the period, not retrospectively. Mullin v. State, infra. In the determination of a “reasonable time” under subsection (b)(3), however, the trial court speaks not as a prophet but as a judge of the prejudice to the accused that in fact occurred and the inconvenience to the State that was in fact avoided by the known delay. It would seem, therefore, that the determination is made retrospectively.

      . “No rights shall accrue to a person under this section if such person refuses to execute every waiver, consent or release necessary to secure his return to this jurisdiction, or if the custodial officials of the jurisdiction in which the prisoner is confined refuse to release him for return to this jurisdiction for trial while such refusal continues.” Rule 3.191(b)(3), R.Cr.P. (Emphasis added).


text:
    Herbert WOLFSON, Appellant, v. Blanche M. WORK, Supervisor of Elections, Polk County, Florida, et al., Appellees.
    No. 75-1622.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Arnold D. Levine of Levine, Freedman & Hirsch, Tampa, for appellant. ,
    Robin Gibson of Gibson & Connor, Lake Wales, for appellees.
   PER CURIAM.

Appellant, Herbert Wolfson, appeals from an order denying his request to enjoin appellees from proceeding on a petition seeking to recall appellant from his office as Lake Wales City Commissioner.

The operative facts are simply stated. Several appellees caused to be filed with the City Clerk the following Petition for Recall in compliance with the Municipal Recall Statute — § 100.361 (F.S.1974 Supp.) —alleging the following grounds for recall of appellant:

“a) Violated the City Charter by giving orders to, and making requests of, city employees who were subordinates of the City Manager.
b) Participated in personal attacks upon the City Administration, department heads and city employees resulting in the resignations of most of the City’s top officials, the majority of which were loyal and competent employees with many years of dedicated service.
c) Damaged the morale of the remaining personnel, made it more difficult to hire replacements and has placed in question the ability of the City to attract new business and residents and to continue normal services to its citizens.
d) Caused the Polk County Grand Jury to file a criminal indictment against him for his conduct in office.
e) Failed to respect and handle honest differences of opinion which naturally arise and are a necessary part of discharging the obligations of public office.”

Following receipt of the petition, appellant filed a complaint seeking to enjoin the recall proceedings alleging that the grounds stated were insufficient as a matter of law to support such proceedings.

After a hearing on appellees’ motion to dismiss, the lower court denied appellant’s request for an injunction by finding that the allegations contained in subparagraph (a) of the statement of the grounds for recall were legally sufficient. In addition, the court denied appellant’s oral motion to strike subparagraphs (b) through (e) of the recall grounds, and dismissed the proceedings with prejudice.

The court, properly we think, ruled that the allegations contained in sub-paragraph (a) constituted legally sufficient grounds for recall within § 100.361, supra. Under the statute, an allegation of “malfeasance” will support recall proceedings. § 100.361(1) (b) (F.S.1974 Supp.). Malfeasance has been defined as the performance by a public official in his official capacity of a completely illegal and wrongful act that he either has no right to perform or has contracted not to do. State ex rel. Hardie v. Coleman (1934), (115 Fla. 119, 155 So. 129; Black’s Law Dictionary p. 1109 (4th rev.ed. 1968). Here, subpara-graph (a) of appellees’ petition tracks the grounds for recall specified in the Lake Wales City Charter. Certainly where a city official violates an express prohibition in the City Charter such violation is a sufficient “illegal” act as to constitute “malfeasance” within contemplation of the statute. We agree with the trial court that subparagraph (a) thus sufficiently alleges “malfeasance” within the meaning of § 100.361(1) (b), supra.

As to the, court’s refusal to strike subparagraphs (b) through (e) of the grounds for recall, we find no error requiring the enjoining of the election. It is not required that all the grounds in the petition be legally sufficient. Only the complete failure of all the charges to meet the statutory requirements will justify enjoining an election. One charge meeting the statutory mandate is sufficient. 4 Mc-Quillin Municipal Corporations § 12.521b (3d rev.ed. 1968). Therefore, since sub-paragraph (a) is legally sufficient to support the recall proceedings, an election thereon would be valid and we need not rule upon the sufficiency of subparagraphs (b) through (e). Given a valid election they are no more than would likely surface during a campaign anyway; and surely such campaign charges wouldn’t void the election.

We see no reason here, therefore, to depart from the wise judicial policy to steer clear of the political processes of the electorate. The order appealed from is accordingly

Affirmed.

McNULTY, C. J., HOBSON, J., and EARNEST, JAMES H., Associate Judge, concur.

      . Section 10 provides in part:
      “ . . . The commission and its members shall deal with the administrative service solely through the city manager and neither the commission nor any member thereof shall give orders to, nor make requests of, any of the subordinates of the city manager either publicly or privately. Any such dictation, orders, requests or other interferences upon the part of a member of the city commission with the administration of the city shall constitute ground for recall of such commissioner.


text:
    STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF MENTAL HEALTH, and G. Pierce Wood Memorial Hospital, Relators, v. The Honorable Harold S. SMITH, as Circuit Judge of the Twentieth Judicial Circuit in and for Collier County, Florida, Respondent.
    No. 75-712.
    District Court of Appeal of Florida, Second District.
    May 23, 1975.
    Rehearing Denied June 18, 1975.
   Prohibition denied.


text:
    Jack RESNICK, Appellant, v. Faye Y. HURLEY, Appellee.
    No. 74-216.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    CAPE ROYAL TOWERS DEVELOPMENT CORP. et al., Appellants, v. FIRST NATIONAL BANK OF MERRITT ISLAND, a National bank, Appellee.
    No. 75-729.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied and Motion to Strike and Reply to Petition Denied Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    MERRITT SQUARE CORPORATION, a Florida Corporation, Appellant, v. TOM CLEMENTS, INC., a Florida Corporation, Appellee.
    No. 75-561.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Feb. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Muriel LUTGERT, Appellant, v. Raymond L. LUTGERT, Appellee.
    Nos. 75-1748, 75-1749.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   Appeal dismissed.


text:
    Donald Lee COOK, Appellant, v. STATE of Florida, Appellee.
    No. 75-522.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
    Rehearing Denied Feb. 11, 1976.
   PER CURIAM.

Affirmed.


text:
    Theodis BECKWITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-875.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 11, 1976.
   PER CURIAM.

Affirmed.


text:
    Vanester BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 75-414.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 11, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Lynwood Anthony FINDLEY, Appellant, v. STATE of Florida, Appellee.
    No. W-492.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 10, 1976.
   PER CURIAM.

Affirmed.