text:
    George SLATTERY, Appellant, v. WELLS FARGO ARMORED SERVICE CORP., Appellee.
    No. 78-1021.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Orr, Nathan & Williams, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellant/plaintiff, a licensed polygraph operator, appeals from an “order granting summary judgment and summary final judgment” rendered in favor of appel-lee/defendant Wells Fargo Armored Service Corp., in an action wherein appellant claimed and was denied the following reward offered by appellee:

“$25,000 REWARD”
“Wells Fargo Armored Service Corporation of Florida announces a reward of up to $25,000 for information leading to the arrest and conviction of the person or persons participating in the shooting of a Wells Fargo agent, the subsequent robbery which occurred on Saturday, February 22, 1975 at Miami, Florida, and the recovery of valuables lost as a result of this occurrence.”
“Information should be directed to Wells Fargo Armored Service Corporation of Florida, P. 0. Box 011028, Miami, Florida 33101, Telephone Number (305) 324-4900. The person or persons to whom the reward or any part thereof should be paid will be determined by the Board of Directors of Wells Fargo Armored Service Corporation of Florida.”

Appellant contends that he was entitled to the reward by virtue of his questioning of the perpetrator of the crime during a polygraph examination on an unrelated matter. Such questioning, which occurred on two separate days, eventually resulted in a statement by the perpetrator that he had shot and killed the Wells Fargo guard, which ultimately led to his conviction and sentence for the crime. Appellant argues that, but for his expertise in interrogation and the operation of a polygraph, the authorities would not have linked the perpetrator to the crime. Thus, appellant contends, he is entitled to the reward offered by appellee.

The trial judge, rejecting appellant’s argument, entered summary final judgment in favor of appellee on the ground that the offer of reward was never accepted by appellant in that the performance called for by the terms of the offer had not been completed. In particular, the trial judge referred to a stipulation entered into by the parties whereby it was agreed that the stolen property belonging to appellee had not been returned. In that both requirements of the unilateral offer of contract had not been performed (the arrest and conviction of the perpetrator a ad the return of the stolen property to Wells Fargo) the trial judge determined that appellant had not accepted the offer and thus, no contract had been established. Therefore, the trial judge entered summary final judgment in favor of appellee.

After carefully reviewing the record on appeal, it is our opinion that summary judgment was proper, but not for the reason relied upon by the trial judge. Initially, it must be kept in mind that a reward is contractual in nature, requiring the acceptance of an offer supported by consideration. Sumerel v. Pinder, 83 So.2d 692 (Fla.1955). The trial judge based his ruling upon the reason that the terms of the offer amounted to dependent covenants, necessitating the performance of each as a prerequisite to an “acceptance.” On the other hand, appellant argues that the covenants are independent of each other and acceptance of the offer of reward was completed upon the satisfaction of one covenant (the arrest and conviction of the culprit). Whether or not the conditions of the offer amounted to independent or dependent covenants is a factual question of intent, the resolution of which sub judice, was improper on motion for summary judgment. Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3d DCA 1978); Mabry Corporation v. Dobry, 141 So.2d 335 (Fla. 2d DCA 1962). As such, the entrance of summary final judgment for the above reason was incorrect, as the record revealed an issue of fact as to the intent of appellee in making its offer of reward.

The record, however, additionally reveals the following facts which do support the entrance of summary judgment. Firstly, while appellant was an independent contractor, during the polygraph interrogation he was employed by either the office of the State Attorney or the Dade County Public Safety Department and was paid for his services on an hourly rate. Further, while so employed, appellant was under a duty to provide his employers with any and all information ascertained by him through interrogation which might be of aid to the State Attorney or Public Safety Department in their capacity as law enforcement agencies.

Secondly, the record demonstrates that through the first day of interrogation, appellant was unaware of the offer of reward. Only on the second day of questioning did appellant have the knowledge that a reward had been offered by appellee. On that second day, the perpetrator of the crime confessed prior to the actual interrogation by appellant.

The law is well settled in this state that before a reward is entitled to be collected, the offeree must have knowledge of the existence of the offer of reward. Sumerel v. Pinder, supra, see generally Annotation, 86 A.L.R.3d 1142, Knowledge of Reward as Condition of Right Thereto (1978). Sub judice, appellant had no knowledge of the reward until the second day of questioning, at which time the perpetrator confessed prior to any interrogation. On this basis alone, summary judgment would have been proper.

We, however, choose to uphold the summary judgment on the ground that appellant was under a pre-existing duty to furnish his employers with all useful information revealed to him through interrogation of the perpetrator. Thus, when appellant “accepted” the offer of reward by furnishing information to the authorities, he was doing no more than he was already bound to do as part of his employment. The performance of a pre-existing duty does not amount to the consideration necessary to support a contract. Brinson v. Herlong, 121 Fla. 505, 164 So. 137 (1935); 7 Fla.Jur. Contracts § 48. As such, no contract was formed.

Further, as a corollary to the above and as a matter of public policy, it is our opinion that to allow appellant to recover a reward for the furnishing of information to the authorities, when he was under a duty to furnish such information as part of his employment, would be tantamount to undermining the integrity and the efforts of those involved in law enforcement. See Davis v. Mathews, 361 F.2d 899 (4th Cir. 1966); Chester v. State, 176 So.2d 104 (Fla. 1st DCA 1965); 67 Am.Jur.2d, Reward § 15; American Law Institute, Restatement of the Law of Contracts 2d (Tentative Draft) § 76A.

Accordingly, as no genuine issues of material fact were left unresolved, and as it affirmatively appears that appellee was entitled to judgment as a matter of law, the summary final judgment entered in favor of appellee is hereby affirmed. .

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Seymour WEINSTEIN, Appellant, v. Sam B. NEVEL, Individually and as trustee, Appellee.
    No. 78-248.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Leonard H. Wolf, Miami, for appellant.
    James F. Pollack, Coral Gables, Proby & Adkins and Lucien C. Proby, Jr., Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Seymour Weinstein appeals an adverse judgment on his counterclaim for rescission of a land sales contract and damages for alleged fraudulent sale of land sold to him by Sam B. Nevel.

In February, 1973 plaintiff-counterdefen-dant, Sam B. Nevel, purchased 14 acres of undeveloped, unzoned property. Nevel retained attorney Alan Rothstein to represent him in applying for RU-2 zoning (duplex) on the subject property. The Dade County Commission approved the application and granted the desired zoning. Thereafter, on December 10 defendant-counterplaintiff, Seymour Weinstein, entered into an option contract for the purchase of the property and closed on the property in November, 1974. He executed a purchase money second mortgage in favor of Nevel which was subordinate to three equal prior first mortgages. Subsequently, a scandal arose wherein three County Commissioners were accused of accepting illegal payments made by attorney Alan Rothstein in order to secure for his clients desired zoning classifications on their properties. The RU-2 zoning on Weinstein’s property was suspected of being secured in this illegal manner by Rothstein and the County Commission imposed a building moratorium on the property on November 4, 1975. Eventually the Commission rolled back the zoning to RU — 1 (single family) in April, 1976. After the removal of the RU — 2 zoning, Weinstein sent Nevel a letter stating that he was tendering the property back to Nevel and demanded return of payments expended in reliance on the zoning with respect to the project and purchase of the property. Nev-el refused and Weinstein discontinued all mortgage payments. Nevel instituted the instant mortgage foreclosure action against Weinstein. (However, the foreclosure action subsequently became moot due to a separate foreclosure action on the first mortgages). Weinstein counterclaimed for damages for breach of contract, fraud and misrepresentation and for rescission. The basis for the counterclaim was that Roth-stein secured the RU-2 zoning through illegal payments to three County Commissioners and that as attorney and agent of Nev-el, Rothstein’s illegal actions should be imputed to Nevel. Under this premise, Wein-stein contends that the sale of the property by Nevel without mention of the alleged illegally secured RU-2 zoning constituted a fraud upon him since three County Commissioners were indicted and convicted for allegedly accepting or soliciting bribes for the zoning of the subject property which, in turn, eventually resulted in the zoning rollback to RU-1. Weinstein also argued that because the RU-2 zoning was .removed by the County Commission, the Nevel mortgage was neither valid nor supported by consideration inasmuch as the property was to have a valid RU-2 zoning. Nevel’s foreclosure action having been rendered moot, the cause proceeded to a non-jury trial on Weinstein’s counterclaim. The trial judge entered judgment for counterdefendant Nevel on Weinstein’s counterclaim based upon the following findings:

sfe sj« sfs sfc % *
“No evidence was offered which could sustain a finding that NEVEL had actual knowledge of any impropriety or illegality in Rothstein’s efforts to secure RU-2 zoning to the property in question. Nor was sufficient evidence offered which showed by the ‘greater weight of the evidence’ that the RU-2 zoning was improperly or illegally secured; the non-disclosure of which would have constituted fraud.
♦ * * Sfc ♦ #
“. . . this Court allowed WEIN-STEIN greater latitude in proving it’s case, and above NEVEL’s vigorous objections and argument, permitted WEIN-STEIN to introduce into evidence the testimony of Rothstein offered in the criminal trial against the three County Commissioners (Goldberg v. State of Florida). Still, this testimony did not prove that the RU-2 zoning of the property was secured illegally, although it could support an inference, among other equally plausible inferences non-supportive of WEINSTEIN’s case, that the RU-2 zoning might have been secured by a promise of future payment.
“This lone inference, countered by facts in evidence tending to prove that the RU-2 zoning of the property was properly secured and that if any impropriety took place with regard to the zoning of this property it took place after such zoning was effective, and after Rothstein had ceased to be an ‘agent’ for NEVEL, is further troubled by the evidence from which it arises. The Supreme Court of Florida recently reviewed the record of the criminal trial from which Rothstein’s testimony and this one inference arose. Goldberg v. State of Florida, 351 So.2d 331 [332] (1977). Upon reviewing the record, the Court found it to be replete with errors and reversed, quashing the convictions of the three County Commissioners and dismissing the indictments.
♦ s(! j|e s|e ajc
“The greater weight of the evidence, both factual and inferential, suggests the RU — 2 zoning classification was properly secured and free from illegality, the knowledge or participation in which could be imputed to NEVEL.
“Nor did the evidence support a finding of constructive knowledge on the part of NEVEL. There was and still is every reason to believe the RU-2 zoning on the property at the time of the option agreement and at the time of the purchase and sale of the property by the parties, was a proper zoning classification. Photographs and descriptions of the development in and about the property in question as well as the testimony of WEIN-STEIN (himself an experienced developer) all strongly support the proposition that the RU-2 zoning classification was a proper one. Thus, in the absence of any facts or circumstances which could have shown NEVEL to have had reason to know of any impropriety in the securing of the RU-2 zoning, this Court finds NEVEL to have had no constructive knowledge of any impropriety involved in the RU-2, which if non-disclosed to WEINSTEIN would have constituted fraud.
“Nor does this Court find NEVEL to have entered into the option agreement or sale contract with WEINSTEIN with any intent to defraud, deceive, or otherwise misrepresent any material fact. The evidence has shown NEVEL, as well as WEINSTEIN, to have entered into and concluded the arms length transaction between them in good faith.
“For these reasons, this Court finds WEINSTEIN to have failed to sustain his burden of proof necessary to reach a finding of fraud on the part of NEVEL. WEINSTEIN thus cannot be awarded damages on that ground.
“Furthermore, this Court cannot rescind the land sale contract, or award damages in addition thereto, as argued for by WEINSTEIN. In view of the evidence of this case, WEINSTEIN may not receive such equitable relief from this Court.
“ ‘One who seeks equity must do equity.’ WEINSTEIN, through his own deliberate actions and inactions, is unable to ‘do equity.’ and return to NEVEL that which he gained from him in the land sale contract. Nor can this Court place NEV-EL in a position equal to that which he was in with regard to the property involved in the contract prior to the contract, WEINSTEIN no longer is in possession of the contract property; he relinquished it to his first mortgagor in lieu of making continued mortgage payments. In so doing, he additionally caused the subsequent ‘wiping out’ of NEVEL’s subordinate purchase money mortgage upon the property by the foreclosure of the first mortgage.
“That NEVEL was able to re-purchase the property at this foreclosure sale, is of little consequence; the property is no longer the ‘same’ property which he sold to WEINSTEIN. The property sold by NEVEL to WEINSTEIN was zoned RU-2, while the property re-purchased by NEVEL is zoned RU-1. Neither WEIN-STEIN, nor this Court, is capable of returning the parties herein, to a position equal to that which existed prior to the conclusion of the land sale contract now sought to be recinded.
“Nor does this Court find NEVEL to be the ‘less innocent, party, as argued by WEINSTEIN. The record is replete with evidence of how WEINSTEIN, an experienced land developer, could have protected the RU-2 zoning of the subject property and thus have avoided all of the damages which he now asserts.
* * sfs * * *
“In addition, there is WEINSTEIN’s reluctance and failure to retain counsel to represent his interest and protect the RU — 2 zoning classification at the County’s reconsideration hearing there was testimony to the effect that the County Commissioners’ decision to ‘roll-back’ the zoning on this property was made totally without regard to any alleged bribery in the original RU — 2 zoning. In view of these facts, WEIN-STEIN’s failure to retain counsel to represent his interests as owner of the subject property before the County Commissioners acting as a ‘zoning appeals board’, in view of the potential damages such a change in zoning could have caused and which WEINSTEIN is in fact claiming were caused, damages WEINSTEIN’s claim that NEVEL is at least the ‘less innocent’ party.
“In addition to this, there is also WEINSTEIN’s failure to challenge or seek to enjoin, this highly questionable ‘roll-back’ in the Courts of this State.
“Lastly, and interrelated with the above, WEINSTEIN’s delay in seeking this Court’s aid in the recission of the land sale contract until after the alleged fraud, misrepresentation, or mistake was allowed to cause as much damage as it possible could and in fact did, is fatal to his cause in equity. For this Court to have been able to recind this land sale contract, WEINSTEIN must have asserted his right to recind and seek the aid of the Courts within a reasonable time after he had knowledge or reason to know of the alleged fraud, misrepresentation, or mistake. The evidence shows WEIN-STEIN had actual knowledge of the alleged fraud upon which he now asserts his right to recission, at the inception of the moratorium declared by the County upon the property in question, and at the least had reason to know of any such alleged fraud several months prior to that. WEINSTEIN’s delay, in view of the consequences, which from the evidence were clearly a potentiallity apparent to him at that time, was unreasonable and constitute a waiver of his right to reeind.”
* * * * * *

Weinstein appeals the denial of the relief sought in this counterclaim.

After a review of the questions raised in this appeal, we find the dispositive issue is whether the findings of the trial judge (sitting as the trier of the facts) are supported by substantial competent evidence. There being more than an adequate amount of such evidence, this court will not disturb the findings of the trial judge. See Equitable Life Assurance Society of United States v. Boraks, 276 So.2d 246 (Fla. 3d DCA 1973).

Judgment affirmed.

      . These convictions were overturned by the Supreme Court. Goldberg v. State, 351 So.2d 332 (Fla.1977).


text:
    Joe LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-849.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

As the state concedes, the order of revocation of probation, from which the defendant has appealed, erroneously states that the defendant was found guilty of a substantive offense, although the amended affidavit which contained that allegation had been stricken by the lower court because it had already found the defendant guilty of three technical violations. Accordingly, the order of revocation of probation should be modified by deleting the reference to the defendant’s violation of condition 4. The order of revocation, judgment and sentence are otherwise affirmed.

Affirmed as modified.


text:
    Anthony JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-487.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Buchbinder & Black, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto and James H. Greason, Asst. Attys. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Sims v. State, 184 So.2d 217 (Fla.3rd DCA 1966); Gaines v. State, 244 So.2d 478 (Fla.4th DCA 1970); Richardson v. State, 246 So.2d 771 (Fla.1971); Johnson v. State, 248 So.2d 208 (Fla.3rd DCA 1971); Phillips v. State, 351 So.2d 738 (Fla.3rd DCA 1977).


text:
    Jaime Patricio PARDO, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a corporation licensed to do business in the State of Florida, Appellee.
    No. 78-321.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and T. E. Scott, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of American Fidelity Fire Ins. Co. v. Richardson, 189 So.2d 486 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 814 (Fla.1967); see Johnson v. Government Employees’ Ins. Co., 333 So.2d 542 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1083 (Fla.1977).


text:
    Joseph PERSHAKE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2224.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Joseph Pershake, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record represented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    FARA MANUFACTURING CO., INC., a Florida Corporation, et al., Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a United States Corporation, Appellee.
    No. 78-388.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Turner, Hendrick, Guilford, Goldstein & McDonald and S. Allan Stanley, Coral Gables, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PEARSON, Judge.

The defendants to a mortgage foreclosure on real property appeal a deficiency judgment against them. The point presented on appeal urges error because there was no evidence before the trial judge of the fair market value of the property.

The rule is clearly that the price bid, and for which realty is sold, at a mortgage foreclosure sale, although conclusive with regard to the efficacy of sale in absence of timely objection thereto, is not necessarily conclusive with regard to the value of property sold on application for a deficiency decree. Weinstein v. Park Manor Construction Company, 166 So.2d 842 (Fla. 2d DCA 1964). See also Fulton v. R. K. Cooper Construction Company, 208 So.2d 863 (Fla. 3d DCA 1967), and Jonas v. Bar-Jam Corp., 170 So.2d 479 (Fla. 3d DCA 1965). There is no Florida case holding that in the absence of evidence of the fair market value that a deficiency decree may not be entered. The proper rule is that upon the introduction of the evidence of the sale price, the defendant has the burden of going forward and presenting such evidence as he shall find proper concerning the fair market value of the property. In the absence of such evidence, the trial court has the power to act upon the assumption that the sale price reflects the fair market value.

In the present instance, the defendants had full notice of plaintiffs’ motion for deficiency judgment and every opportunity to proceed with such evidence as they thought proper. Inasmuch as no evidence of fair market value was introduced, other than the sale price, the deficiency judgment was properly entered.

Affirmed.

      . Section 45.031(7), Florida Statutes (1977), states:
      “VALUE OF PROPERTY. — The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. * * * If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles." [Emphasis Added]
      55 Am.Jur.2d Mortgages § 922 says, in part:
      “Where the circumstances are such that the mortgagor may defend a deficiency action on the ground that the mortgaged property was sold for less than its fair market value, he has the burden of proving that a higher price should have been obtained.”


text:
    Harry RENKERT, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 78-715.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Hastings & Goldman and M. Clinton Glancy, Miami Beach, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Tom E. Scott, Jr., Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Sound, legal discretion is afforded a trial judge in matters arising under Florida Rule of Civil Procedure 1.540(b), where that discretion is based on accepted legal principles. Cf. United States v. Gould, 301 F.2d 353 (5th Cir. 1962).

Affirmed.


text:
    Annie WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2623.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Demos, Dougherty & Perez and James F. Dougherty, III, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr., Associate Judge.
   PER CURIAM.

Affirmed. Williams v. State, 110 So.2d 654 (Fla.1959); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361 (1942); Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); Crum v. State, 172 So.2d 24 (Fla. 3d DCA 1965). See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Jones v. State, 360 So.2d 1293, 1296 (Fla. 3d DCA 1978).


text:
    Willard Leroy GIBSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-691, 78-707.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

By these consolidated appeals, the appellant seeks review of an order of the trial court revoking his probation and sentencing him to five years. The second order appealed was a final judgment, which found the appellant guilty of a dwelling and sentenced him to fifteen years.

The appellant alleges error in the probation. revocation hearing, in that the trial judge permitted the State to introduce evidence to establish that the appellant was arrested for several burglaries when the State failed to prove all of them occurred, and which the trial judge took into consideration in entering the order appealed. The point would appear to be without merit, as the State did introduce evidence of one burglary and an attempted burglary committed by the appellant. Thus, this point should be affirmed on the authority of Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974); Croteau v. State, 334 So.2d 577 (Fla.1976); Couch v. State, 341 So.2d 285 (Fla. 2d DCA 1977).

The second point is directed at the final judgment, convicting the appellant of burglary. The appellant alleges it was error for the trial court to refuse to let the appellant testify that some police officers attempted to coerce him to plead guilty, where such testimony would establish bias of the State’s key witness: the arresting officer. The only questions asked in this regard were whether anyone from the police had threatened the defendant. Objection thereto was sustained and no proffer was made to establish that person was in fact the arresting officer. Thus, it would appear the testimony was immaterial, irrelevant, hearsay, and would at most be harmless error for failure to permit it into evidence. Thus, the conviction and sentence should be affirmed on the authority of Haager v. State, 83 Fla. 41, 90 So. 812 (1922); Matthews v. State, 130 Fla. 53, 177 So. 321 (1937); Section 924.33, Florida Statutes (1977).

Therefore, the order revoking probation and the final judgment adjudicating the appellant guilty of burglary be and the same are hereby affirmed.

Affirmed.


text:
    Carol Webster SHELFER and Robert Shelfer, Appellants, v. Leslie POWERS and Allstate Insurance Company, Appellees.
    No. 77-2698.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Kaplan, Dorsey, Sicking & Hessen, Miami, and Joel V. Lumer, Coral Gables, for appellants.
    Adams & Ward and Amy Shield Levine, Miami, for appellees.
    Before HENDRY, J., and TYSON, ROBERT W., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

Appellants/plaintiffs take this appeal from an adverse final judgment rendered pursuant to a jury verdict in favor of appel-lees/defendants in a personal injury action emanating from a collision between appellants’ automobile and that of appellee-Pow-ers.

It is appellants’ contention that the trial court erred in admitting into evidence, over appellants’ objection, certain documents and a photograph used by appellants in connection with a prior accident in which appellant-Carol Shelfer had made a claim for settlement.

Our consideration of the points on appeal, in light of the record, briefs, and arguments of counsel, convinces us that no reversible error has been made to appear. Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    SOUTH CAROLINA INSURANCE COMPANY, a foreign corporation, Appellant, v. Wilfredo RODRIGUEZ, Appellee.
    No. 78-969.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Corlett, Merritt, Killian & Sikes and Lawrence B. Craig, III, Miami, for appellant.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, Albert Wilensky, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., Associate Judge.
   PER CURIAM.

This appeal concerns the correctness of a summary final judgment rendered in favor of appellee/plaintiff and against appellant/defendant in an action for a declaratory judgment wherein appellee, a passenger in an uninsured motor vehicle which collided with a motor vehicle insured by appellant, sought a determination of his right to collect personal injury protection benefits from appellant.

The sole issue for our determination is whether an insurer of a motor vehicle under a Florida no-fault policy must pay personal injury protection benefits to a passenger in an uninsured motor vehicle which collides with the insured vehicle, when that passenger neither owns nor operates a motor vehicle and does not reside with anyone who does so own or operate a motor vehicle.

We believe that, pursuant to our recent decision in State Farm Automobile Insurance Company v. Kraver, 364 So.2d 1259 (Fla. 3d DCA 1978) and the clear dictates of Section 627.736(4)(d), Florida Statutes (Supp.1976), we must answer the above query in the negative.

Accordingly, the summary final judgment appealed from is hereby reversed, and the cause remanded with directions to enter judgment in favor of appellant.

Reversed and remanded with directions.


text:
    Ginny DURAN, Appellant, v. Edward NEFF, M. D., Mercy Hospital, Inc., Guillermo Leon, M. D., and Imperial Insurance Company, Appellees.
    No. 77-1256.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Richard A. Bokor, Tampa, Guillermo F. Mascaro, Coral Gables, for appellant.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Preddy, Kutner & Hardy and Robert J. Bogdanoff, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

In a medical malpractice action, the plaintiff sought and received the right to have her case presented first on a Monday morning before the trial court. On Monday afternoon, at 5:10 P.M., counsel for the plaintiff suggested that the court take a short recess before permitting him to put on an expert witness, whose examination would be lengthy. The court declined to do this and recessed until the next day. Plaintiff was unable to produce the expert witness on the following day and a directed verdict was rendered against the plaintiff.

The plaintiff appeals and urges error in the trial judge’s refusal to take her expert’s testimony late on the first day. We find no abuse of discretion in the trial court’s ruling. It is elementary that a trial judge must be given broad latitude in the control of causes before him, particularly jury cases, and on this record there is certainly no abuse of discretion demonstrated. Rose v. Yuille, 88 So.2d 318 (Fla.1956); Bowen v. Manuel, 144 So.2d 341 (Fla. 2d DCA 1962); F & B Ceco, Inc. of Florida v. Galaxy Studios, Inc., 216 So.2d 75 (Fla. 3d DCA 1968); Piver v. Birman, 311 So.2d 675 (Fla. 4th DCA 1975).

Therefore, the final judgment based on the directed verdict is affirmed.

Affirmed.

      . Although counsel for the appellant assigned other alleged errors in rulings by the trial judge, these were not made points on appeal and, therefore, they were deemed abandoned. Mitchell v. Mason, 61 Fla. 692, 55 So. 387 (1911); Saxton v. Miller, 230 So.2d 685 (Fla. 4th DCA 1970); Mahoney v. State, 300 So.2d 743 (Fla. 1st DCA 1974); Fla.R.App.P. 3.7i.


author: KEHOE, Judge.

text:
    Tommy Lee MATTHEWS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-664.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen. and Sharon Langer, Legal Intern, for appellee.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence for burglary and receipt of stolen property. Among the points raised by appellant, one requires reversal.

Appellant, in his second point on appeal, contends that the trial court erred in permitting the prosecutor to make collateral crimes the feature of his trial; thereby, depriving him of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article I, Sections 9 and 16, of the Constitution of the State of Florida. Our review of the record shows that the prosecutor introduced extensive evidence regarding a collateral offense to which appellant had entered a plea of nolo contendere. It is evident from the record that the prosecutor’s extensive utilization of such evidence was to emphasize appellant’s involvement in this other crime, thereby implicating appellant with a criminal propensity, i. e., to make appellant’s involvement in the collateral crime a main “feature” or theme in the instant case. Although the introduction of such evidence is permissible under certain circumstances, when it reaches to the extent as reflected by this record, in our opinion, it constitutes reversible error. See, e. g., Ashley v. State, 265 So.2d 685 (Fla.1972); Williams v. State, 117 So.2d 473 (Fla.1960); and Drayton v. State, 292 So.2d 395 (Fla. 3d DCA 1974). Accordingly, based upon this point, the judgment and sentence appealed are reversed and the cause is remanded for a new trial. In light of this determination, it is unnecessary for us to consider the other points raised by appellant.

Reversed and remanded.


text:
    Geneva MASON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-77.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr., Associate Judge.
   PER CURIAM.

Appellant was convicted of simple battery after a jury trial. She was adjudicated guilty and given the maximum sentence of one year in jail. We affirm the conviction but remand the cause for a sentencing hearing as required by Fla.R.Crim.P. 3.720.

The requirement of a sentencing hearing is mandatory-under the rule and may not be omitted at the discretion of the trial court. Mask v. State, 289 So.2d 385 (Fla.1973); Trudeau v. State, 348 So.2d 66 (Fla. 4th DCA 1977), certiorari denied, 355 So.2d 517 (Fla.1978); Culbertson v. State, 306 So.2d 142 (Fla. 2d DCA 1975). Nor can the mandatory nature of the rule be satisfied by giving the appellant the opportunity to submit evidence in mitigation of her sentence at a subsequent hearing on her motion to mitigate. Fla.R.Crim.P. 3.720(b) requires that the sentencing court shall: “Entertain submissions and evidence by the parties which are relevant to the sentence[.]” Clearly, it would defeat the whole purpose of the rule to deny the defendant the opportunity to present evidence relevant to the sentence prior to the imposition of that sentence.

Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977) does not dictate a contrary result. There, we held that the trial court’s denial of defendant’s motion for a continuance prior to sentencing was not an abuse of discretion. The trial court in Cheatham fully complied with the requirements of Fla.R.Crim.P. 3.720. In this case, the trial court expressly denied the appellant’s motion for a sentencing hearing. This denial was error.

This case is remanded for resentencing after first affording the appellant an opportunity to offer matters in mitigation as mandated by the Rules of Criminal Procedure. In all other respects, the judgment of the trial court is affirmed.


author: BOYER, Acting Chief Judge. SMITH, J.,

text:
    KILLEARN PROPERTIES, INC., a Florida Corporation and Killearn Homes Association, Inc., a Florida Corporation, not for profit, Appellant, v. CITY OF TALLAHASSEE, a Municipal Corporation, organized and existing under the laws of the State of Florida, Appellee.
    No. DD-38.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1979.
    Rehearing Denied Feb. 1, 1979.

      Edward S. Jaffry and Mallory E. Horne of Horne, Rhodes, Jaffry, Stephens, Bryan, Horne & Chapman, Frank A. Graham, Jr., Tallahassee, for appellant.
    James R. English and Bryan W. Henry, Tallahassee, for appellee.
   BOYER, Acting Chief Judge.

The facts of the case are for the most part undisputed. The basic conflict involves an agreement between the City of Tallahassee (hereinafter referred to as City) and Killearn Properties, Inc. (formerly, Kill-earn Estates) (hereinafter Killearn) whereby the City was to supply street lights and the necessary electrical power therefor to the Killearn subdivision in Leon County, near Tallahassee.

On December 81, 1964, a letter (Plaintiff’s Exhibit “A”) was sent by Mr. J. T. Williams, President of Killearn Estates, Inc., (the predecessor corporation to appellants, Killearn Properties, Inc.) to the then City Manager, Mr. Arvah Hopkins, regarding the possible installation of street lights and electrical power in the Killearn subdivision. That letter was signed by both Mr. Bill G. Cartee, then the President of Kill-earn and Mr. Hopkins as City Manager, and included the following paragraph:

“Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future.”

Killearn was simultaneously considering obtaining the same services from a competitor of the City, Talquin Electric Corp. The record clearly reveals that both the City and Talquin were competing for the business and that both were willing to negotiate for the privilege of furnishing electricity to the subdivision. In reliance upon the representations and promises of the City, it was chosen to provide the services and in 1965 it installed street lights for which appellant, Killearn Homes Association, Inc., paid until 1968.

Mr. Hopkins, the City Manager, did not have the authority to sign a formal contract for the City, but had the duty to “work these arrangements out and present them to the City Commission.”

In mid 1967 or early 1968, Mr. Hopkins arranged for billing of the street lights to cease. Mr. Williams testified that there was no written evidence of that arrangement. His testimony did indicate that he and.Mr. Hopkins had planned to adopt a “formula” for street light service.

On November 2, 1967, the City and Kill-earn reduced to writing the arrangements of December 31, 1964. (Plaintiff’s Exhibit “B”) That agreement recited that the parties “hereto mutually affirm and ratify each and every of the numbered conditions and agreements entered into on December 31, 1964 . . .”. That document bore the signatures of the then Mayor, the Honorable John A. Rudd, Sr., and the then Killearn President, Bill G. Cartee.

In March 1970, a memorandum was signed by the City Commissioners (Plaintiff’s Exhibit “C”). They did not sign at an open regular meeting, but rather signed sporadically over a period of two days. However, the record reveals that the memorandum was discussed in open sessions of the Commission and for all practical purposes there approved.

The memorandum provided as follows: “According to Killearn’s agreement with the City dated December 31, 1964, paragraph 5, financial arrangements regarding the number of lights to be furnished by the City ‘will be negotiated in the near future’. The negotiations were delayed until about June of 1967, at which time an agreement was reached regarding a policy which could be appropriate to any area served by the City of Tallahassee, as follows: Street lights shall be furnished by the City of Tallahassee under the following conditions:
“1. The area covered must be using City electrical and water services.
“2. The area must include at least 100 homes.
“3. An association must be formed by the residents through which a street light contract would be paid.
“4. The street light contract must be entered into at the time electrical services are installed.
“5. During the first 3 years of street light service, one street light shall be furnished free of charge for each $1,000.00 of utility revenue received each year by the City.
“6. After the first 3 years of service, one street light shall be furnished free of charge by the City for each $750.00 of utility revenue received each year by the City.
“In view of the above, the City should immediately compute the amount of money which should either be refunded to the Killearn Home Association or the additional amount which that association owes to the City for all street lights within Killearn’s property. In addition, street lights should be installed immediately in Unit 7 which has been under contract since November of 1968.”

On May 8, 1974, Mr. Williams received a letter from Mr. Cook, the City Auditor and Clerk, (Plaintiff’s Exhibit “D”) which stated:

“At the direction of the City Commission and City Attorney Bryan Henry, I am forwarding a bill for street lights in Kill-earn. The bill covers the period from November 20, 1970, through April 20, 1974.
“Further at the direction of the Commission, the bill is to be processed in the routine which applies to the collection of all utility accounts. For your information, that routine is as follows:
“1. The bill is due upon receipt.
“2. The bill becomes delinquent fifteen days after receipt and a second notice is forwarded.
“3. If the bill has not been paid ten days after it becomes delinquent, an order to discontinue service is dispatched to the Electric Department.
“If you have any questions regarding this matter or the procedure, please call me.”

On September 8, 1976, Killearn and Kill-earn Homes Association filed a Complaint in the Circuit Court in Leon County asserting that the City was and is obligated to furnish street light service to Killearn Estates pursuant to the above mentioned agreements.

The Complaint alleged that the City had indicated that it would discontinue the street light service until the Plaintiffs complied with the City’s request that they pay an alleged back bill for such service.

The City answered the Complaint and counter-claimed for an amount of $25,308.96 for furnishing, at Killearn’s request, 118 street lights and the electricity to illuminate them. The counter-claim asserted that a demand for payment had been made and refused. The City also affirmatively defended on the ground that portions of the alleged contracts violated the 1957 Code of the City of Tallahassee and were therefore beyond the capacity of the City of Tallahassee to perform.

Killearn answered the counter-claim, and affirmatively defended that Killearn was under no duty to pay for the street lights, that the City was guilty of laches, and that the City was estopped from claiming any payment for the street lights.

A pretrial order was filed in which certain facts were stipulated and the legal issues were delineated.

On July 13, 1976, following a trial on the merits, the Judge entered the final judgment here appealed. It provides:

“This cause came on for trial without a jury on a Complaint for Declaratory Judgment, and pleadings responsive thereto, a Counterclaim filed by the Defendant, and pleadings responsive thereto, and the Court having heard the testimony, argument of counsel and being otherwise fully advised in the premises, finds as follows:
“(1) That in 1964 the Defendant, City of Tallahassee, had a surplus of electricity and by and through its then City Manager, Arvah B. Hopkins, by and with the consent of the then City Commission, did negotiate and agree with Killearn Estates, Inc., predecessor corporation to Plaintiffs, Killearn Properties, Inc., to furnish utility services to a subdivision of Plaintiffs; which agreement was introduced into evidence as Plaintiff’s Exhibit ‘A’. The evidence further revealed that at the same time, Plaintiffs’ were negotiating with a competitor of Defendant, to-wit: Talquin Electric Coop, for it to provide the same services which were ultimately provided by Defendant. That both Defendant and Talquin were willing to make concessions to Plaintiffs in order to get their business, and agreement was finally made with Defendant, inasmuch as, the officers of Plaintiff’s Corporations, being life residents of Tallahassee, felt they owed it to the City to give them the business in order to help it dispose of the surplus of electricity then existing.
“(2) Subsequently, the agreement reached between Plaintiffs and Defendant was reduced to writing, formally adopted and ratified by the City of Tallahassee. Said writing, or Contract, was introduced in evidence as Plaintiffs’ Exhibit ‘B’.
“(3) Paragraph number ‘5’ of the Contract between the parties, provided as follows:
‘5. Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future.’
“(4) In March of 1970, no implementation of the above paragraph ‘5’ of the Contract having been had, the individual City Commissioners then in office, signed a memorandum, introduced in evidence as Plaintiffs’ Exhibit ‘C’, in which a formula was set forth enumerating, among other things, that Defendant, City of Tallahassee, would furnish one (1) free street light for each $1,000.00 of utility revenue received annually by the Defendant. This document was signed by the various Commissioners at various places over a two (2) day period.
“(5) The parties relied upon said memorandum and performed thereunder. The Defendant ceased billing Plaintiffs for street lights in October, 1970, and transferred sufficient funds from its General Revenue to its Electric Reserve to satisfy the past-due bill. Thereafter, annually, the Defendant made similar transfers, which transfers were budgeted and said budgets approved in open meeting of the City Commission.
“(6) The evidence was conflicting as to whether or not the memorandum was ever approved by the City Commission in open meeting. The recollections of the then City Manager, Arvah Hopkins, and of Commissioner Taft, were that it was approved in open meeting. Commissioners Everhart, Berkowitz and Camp testified that it was not their intention, and they did not sign the Memorandum with the intent that it be a binding contract. Each of them subsequently approved the budget transfers of revenue, however, former City Auditor-Clerk, Louis Cook, testified that he saw the instrument in question the day it was finally executed, but that it was never approved in an open meeting.
“(7) That sufficient revenues have been received to provide for the street lights in existence under the formula set forth in Exhibit ‘C’, and that such lights are not free, but are provided in return for the substantial utility income received by Defendant from Plaintiffs’ subdivision.
“(8) That while the document marked Exhibit ‘C’ does not meet formal requirements of a contract, the parties have abided by it and should be estopped to deny the agreement as it is hereby found to reasonable and substantial benefits therefrom have flowed to each party; that the agreement originally entered into by the parties contemplated that some agreement would be reached by the parties relative to street lights.
“(9) That the memorandum marked Exhibit ‘C’ is not necessarily binding for all time, and if Defendant can show that the change sought by it is reasonable, then it has the right to re-negotiate the terms thereof. See Southern Gulf Utilities, Inc. v. City of North Miami Beach, (1975 3rd DCA) 323 So.2d 669. .
“Accordingly, it is,
“ORDERED AND ADJUDGED:
“1. That the Court finds for the Plaintiffs and against the Defendant, City of Tallahassee; that the document admitted into evidence as Exhibit ‘C’, while not binding on the City of Tallahassee for all time, has been complied with by the parties as being a binding contract and was entered into as implementing the agreement made by the parties in November 1967, Exhibit ‘B’, which set out the matters contained in Exhibit ‘A’. That the document marked Exhibit ‘C’ was fair and reasonable at the time it was entered into, and the Defendant, City, should be and is hereby estopped to deny the same. “2. That Defendant, City of Tallahassee, return to the Plaintiffs, the sums of money paid to it for street lights for the period November 20, 1970, to April 20, 1974. That the City is bound by the memorandum Exhibit ‘C’ until May 8, 1974, the time it notified Plaintiffs that Defendant expected to be paid for street lights, thereby putting Plaintiffs on notice that they did not elect to be bound by Exhibit ‘C’; that upon proper showing that the charges proposed by the City are reasonable, as contemplated by the Southern Gulf Utilities case, cited above, then the City shall be entitled to charge Plaintiffs for such street lights from May 8, 1974, as the rate determined to be reasonable.”

Killearn timely filed its Notice of Appeal in which Killearn Homes Association joined. The City filed a notice of cross-appeal.

Killearn takes the position that the City is bound by its agreements evidenced by the written document signed by the various City Commissioners in 1970 (Plaintiffs Exhibit “C”) concerning the installation and services of street lights, arguing that the City was engaged in a proprietary as opposed to governmental function,- that the City is therefore subject to the same legal principles that govern individuals engaged in business transactions, that the doctrine of equitable estoppel therefore precludes the City from denying the applicability of their agreements both prior and subsequent to May 8, 1974, (the date the City notified Appellants that it expected to be paid for the street lights) and that the Trial Court erred in concluding that the City had no obligation subsequent to May 8, 1974.

The City recognizes and admits that the installation of street lights is an exercise of a proprietary function and that in certain circumstances the doctrine of equitable estoppel may be applied in Florida against municipalities in the exercise of their proprietary functions. (See, for instance, Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963), City of North Miami Beach v. Keller, 308 So.2d 558 (Fla. DCA 1975).) However, the City argues that Southern Gulf Utilities, Inc. v. City of North Miami Beach, 323 So.2d 669 (Fla. 3rd DCA 1975), cited by the trial judge, precludes application of the doctrine of estoppel because, the City contends, a City has a right and duty, notwithstanding a contract to the contrary, to readjust its rates provided the readjustment is reasonable. The City then continues its argument to the effect that the provisions of any applicable existing statutes become a part of a contract upon execution and it thereupon cites several statutes or provisions of its charter which at least inferentially allow or require rate adjustments.

But the City’s argument misses the point. Even Killearn agrees that applicable existing statutes are a part of the contract and that the City has a right to adjust its utility rates. The issue here involved is not whether utility rates may be adjusted (increased). The agreement between the parties does not even address such a term. The trial judge found, correctly the record reflects, that the street lights here involved are not free, but are provided in return for substantial utility income received by the City from the residents of Killearn. Whether that income may be adjusted by adjustment of utility rates has never been an issue. The issue is whether the City may now, although it continues to receive the benefits of its agreement, viz.; it continues to receive the substantial income from electricity distributed in the Killearn subdivision, nevertheless discontinue furnishing the street lights which it clearly agreed to furnish, or alternatively extract from Killearn payment of additional revenues contrary to its agreement.

To state the issue is to answer it. Clearly the City may not do so. The agreements are clear. Indeed, the City does not deny their existence. The agreements resulted from negotiations between the City and Killearn when Killearn had other viable alternatives available to it. Talquin Electric, the record reveals, was ready,-willing and anxious for Killearn’s business. Kill-earn relied upon its agreements with the City in terminating negotiations with Tal-quin. Both parties acted on the agreements for several years. Killearn has complied and, from ought that appears from the record still complies, with its agreements. The City yet enjoys the fruits of its agreements in that it yet furnishes electricity to the Killearn subdivision and charges therefor. To use an old cliche, the City wants to have its cake and eat it too. That it may not do.

Further, the record reveals that Chapter 24914, § 3, Laws of Florida (1947), now found as § 225 of the City of Tallahassee Charter, authorizes the acts of the City from whence it now seeks to escape. That section provides:

“That the city is further authorized to make all contracts and execute all instruments which in the discretion of the city commission may be necessary, proper or advisable in and for the enlargement and extension of the electric plant and distribution system herein authorized, and is authorized to carry out and perform the covenants, terms and conditions of all such contracts or instruments.”

First, as the Act requires, the agreements were authorized by the City Commission, and the lower court expressly held (and we agree) that estoppel carries Killearn over any objections by the City on grounds of lack of proper formalities or procedures in making the agreements. Second, the agreements made were expressly found by the lower court to be motivated on the part of the city by a desire to enlarge and extend its electric distribution system into appellants’ locality. The record sustains the finding. The act also vests discretion in the City Commission. Discretion necessarily denotes reasonable latitude.

The Legislature has authorized the City to go into the marketplace and compete with whoever is there for the available electric utility business. The Legislature has also recognized that if the City is to compete and succeed it must do some bargaining, and be prepared to give quid pro quo. In Section 225, the Legislature has authorized that bargaining, and such bargaining is just what was done by the City in the case sub judice.

Whether or not the agreements between the parties, clearly revealed by the unquestioned exhibits above mentioned, are sufficient to constitute a formal contract is not, under the circumstances of this case, material. Certainly, the City admittedly acting in a proprietary capacity, estoppel is applicable. The learned trial judge so found. In that finding he was correct.

However, the trial judge erroneously held that somehow estoppel ceased when the City notified Killearn that the City did not elect to be bound by its agreement, April 20, 1974. In so holding the learned trial judge apparently relied upon Southern Gulf Utilities, Inc. v. City of North Miami Beach, supra. We find, though, that that ease, while expounding good law, is not here applicable. As already above observed, no rate adjustment is involved sub judice.

Though application of the doctrine of es-toppel against a government is no stranger to the jurisprudence of Florida (See Hollywood Beach Hotel Co. v. City of Hollywood, supra; Sakolsky v. City of Coral Gables, supra; City of North Miami Beach v. Keller, supra, and George W. Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977)), we find interesting a thorough treatment of the subject by the Supreme Court of California in City of Long Beach v. Mansell, 3 Cal.3d 462, 91 Cal.Rptr. 23, 476 P.2d 423. Examining the conflicts in the area, that court said:

“It is settled that ‘[t]he doctrine of equitable estoppel may be applied against the government where justice and right require it. (United States Fid. & Guar. Co. v. State Bd. of Equal. (1956) 47 Cal.2d 384, 388-389, 303 P.2d 1034 and cases there collected.)’ (Driscoll v. City of Los Angeles, supra, 67 Cal.2d 297, 306, 61 Cal.Rptr. 661, 666, 431 P.2d 245, 250.) (See generally 28 Am.Jur.2d, Estoppel and Waiver, §§ 122-133, pp. 782-802; 31 C.J.S. Estoppel §§ 138-147, pp. 675-733.) Correlative to this general rule, however, is the well-established proposition that an estoppel will not be applied against the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public, * * • * ’ (County of San Diego v. Cal. Water and Tel. Co. (1947) 30 Cal.2d 817, 829-830, 186 P.2d 124, 132; see also cases there cited.) The tension between these twin principles makes up the doctrinal context in which concrete cases are decided.” (91 Cal.Rptr. at page 45, 476 P.2d at page 445)

After a thorough examination of numerous cases dealing with the seemingly conflicting doctrines, the court undertook to resolve that conflict and in doing so stated:

“. . . After a thorough review of the many California decisions in this area, as well as a consideration of various out-of-state decisions, we have concluded that the proper rulé governing equitable es-toppel against the government is the following: The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.” (91 Cal.Rptr. at page 48, 476 P.2d at page 448)

If the rule were not as so announced a governmental agency could purposefully fail to comply with some statutory prerequisite to the execution of a contract, avail itself of the benefits of that contract until such time as it arbitrarily and capriciously chose to ignore it, and then do so with no fear that any court could compel it to honor its agreement. It is just such a theory that the City asserts in this case and it is because of such conduct on the part of unscrupulous parties that the doctrine of equitable estoppel has become engrained as a cornerstone of the jurisprudence of a majority of the states of this nation.

Sub judice, the City induced Killearn to enter into the subject agreements and promised as part of that inducement to install street lights in the Killearn subdivision in return for utility revenue. Killearn relied on the City’s representations and inducements. Repeatedly the City manifested its understanding of the terms of its agreements by installing street lights, not charging for same, collecting utility revenue and providing for the payment of such street lights from its general operating fund into its special electrical utility fund in compliance with its own requirements relating to bond financing. To now permit the City to unilaterally and arbitrarily rescind its agreements and withdraw therefrom would be to sanction an injustice for which no excuse has been demonstrated.

Nor may the City bolster its position by reliance on Chapter 286, Florida Statutes, commonly referred to as the Sunshine Law. In that regard the City concludes that since the memorandum of March 12, 1970 was not signed in an open meeting with all Commissioners being present at the same time it was violative of the Sunshine Law and therefore void ab initio. We are acquainted with no authority for such a proposition.

City Commissions are unquestionably public bodies within the scope of the Sunshine Law. (Town of Palm Beach v. Gradison, 296 So.2d 478 (Fla.1974), cert. denied, 423 U.S. 868 (1975), City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971), Grapeland Heights Civic Ass’n v. City of Miami, 267 So.2d 321 (Fla.1972), Bigelow v. Howze, 291 So.2d 645 (2d DCA 1974).) However each and every discussion among City Commissioners need not be made in the sunshine. Nor is it necessary that written documents, including contracts, be signed simultaneously by the signatories nor during an open meeting.

Section 286.011, Florida Statutes (1975), provides as follows:

“286.011 Public Meetings and records; public inspection; penalties
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting.
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.
(3)Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.”

The portion of that statutory authority material here is:

“. . . [a]nd no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting.”

The record reveals that all “formal action” of the City Commission as concerns the subject at hand was taken at a public meeting “open to the public”.

The letter dated December 31, 1964, (Plaintiff’s Exhibit “A”) to then City Commission Arvah Hopkins from Killearn’s representative recites in pertinent part:

“5. Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future.”

Subsequent to 1964, in 1967 or 1968, as recited above, in response to the contents of Plaintiff’s Exhibit “A”, as well as the contents of Plaintiff’s Exhibit “B” (both here-inabove mentioned) the Appellee City Commission in open meetings adopted, approved and implemented the provisions of Paragraph 5 of the “Hopkins letter” above quoted and its own formal contract containing the same provisions as that letter.

Plaintiff’s Exhibit “B” was signed by the then Mayor of the City, attested to by the then City Clerk, approved by the City’s then City Attorney and signed by Killearn’s representative. In addition, that agreement made specific reference to the agreement of the parties on December 31, 1964, relative to the furnishing of utility service. It is clear that the agreement between the parties was arrived at as the result of formal action at an open meeting of the City Commission.

In fact, an examination of the record reflects that it was in open meeting during the year Í970 that the City Commission actually authorized the payment of street light service from the City’s general fund for the years 1968-1970 to its “electricity fund”.

Moreover, the record reflects that on September 26, 1972, the City, recognizing that it had previously agreed to the furnishing of street light service and other utility services to Killearn, modified its earlier contracts and extended those agreements to other subdivisions owned by appellant.

Unhappily, this case is but another example of the utter disregard with which a government views its sacred obligations to its people. (Bates v. Slaughter, 347 So.2d 764 (Fla. 1st DCA 1977); State ex rel. Seal v. Shepard, 299 So.2d 644 (Fla. 1st DCA 1974); and Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974).) Basic morality, integrity and honesty appear to no longer have any meaning to governments and their agencies. The subject agreements, first verbal, and later reduced to writing and signed by all of the appropriate and necessary city officials, were honored by the City so long as it was in its interest to do so. It then sought to disavow same alleging that it had itself violated the Sunshine Law and thereby vitiated the agreement. There is no complaint from the City’s competitor in the furnishing of electricity nor from any interested citizen. The City itself, of its own volition, seeks to take refuge in its own alleged violation of law, all the while blatantly ignoring, and seeking to escape from, its moral obligations to the citizens who reside in Killearn subdivision for whose benefits the agreements were made. A more flagrant act of dishonor can hardly be imagined. A citizen, when dealing with a government, is powerless to require that it and its officials abide by the law. Indeed, it is virtually impossible for a citizen to determine how, when or where a contract is signed or under what circumstances. In this case, as already observed, the record clearly reveals that the City’s obligations were repeatedly discussed in open meetings and the manner in which the agreements were executed was never questioned nor held up to doubt. It is one thing for an aggrieved citizen to seek to have set aside an agreement between a government and another party because of Sunshine Law violations; but quite another for the governmental entity itself to seek to escape its obligations based upon its own alleged wrongdoing. It has long been recognized to be unethical for a lawyer to attack his own work product. It is at least immoral and an indication of lack of integrity for a government or its agency, whose duty it is to serve not subvert its citizens, to do the same.

The learned trial judge correctly refused to find a violation of the Sunshine Law. Even if there was a violation, under the circumstances of this case the City would be estopped to itself assert it.

Finally, Killearn Homes Association, Inc. questions the use of the plural (which necessarily includes it) by which the trial court held in the second paragraph of the adjudicatory portion of the Final Judgment “that upon proper showing * * * the City shall be entitled to charge Plaintiffs for such street lights from May 8, 1974 * * ”.

Briefly stated, the Homes Association’s point is that the question of whether the Homes Association might be liable for the cost of operating the street lights was not at issue in this case. The complaint did- not put the Homes Association’s liability in issue; the answer did not put it in issue; nor did the pretrial order list it among the issues for trial. Homes Association did not submit any evidence on the question at the trial, nor did it address the issue in arguing before the court at the close of evidence, because it justifiably was under the impression that the question was not at issue.

Although Homes Association argued the point in its brief, the City did not mention it in its responsive brief.

Killearn Homes has cited numerous authorities to support the proposition that such errors are the proper subject of appeal. We agree. The point is so well settled as to render citations superfluous.

Our examination of the record convinces us that the use of the plural, thereby including Killearn Homes, was probably a clerical error. In any event it was error. Accordingly, insofar as the final judgment here appealed may be subject to the construction of placing liability on Killearn Homes for payment for street lighting in the Killearn subdivision, it is reversed.

Our holdings regarding the points herein specifically discussed render consideration of the other points argued in the several briefs unnecessary.

In summary, by this opinion we:

A. Affirm the failure of the trial judge to find a violation of the Sunshine Law.

B. Affirm the application of the doctrine of estoppel to the City to deny the agreements with Killearn Properties, Inc. relative to street lighting.

C. Reverse the finding and adjudication by the trial court that the agreements are “not necessarily binding for all time and [that] if [the City] can show that the change sought by it is reasonable, then it has the right to renegotiate the terms thereof”, relying on Southern Gulf Utilities, Inc. v. City of North Miami Beach, 323 So.2d 669 (Fla. 3rd DCA 1975).

D. Affirm the requirement that the City “return to the plaintiffs the sum of money paid to it for street lights for the period November 20, 1970 to April 20, 1974.”

E. Affirm the adjudication by the trial court that the City is bound by its agreements with Killearn Properties, Inc.

F. Reverse the holding by the trial court that the “City shall be entitled to charge [appellants] for such street lights from May 8,1974, as the rate determined to be reasonable.”

G. Reverse the implicit holding and adjudication that Killearn Homes Association, Inc. may be charged for street lighting in the Killearn Subdivision.

Pursuant to Rule 9.330(a), Florida Rules of Appellate Procedure, the time for filing any motion for rehearing or for clarification of this decision, if any, by any party, shall be filed within eight days from date hereof.

AFFIRMED in part and REVERSED in part and REMANDED for further proceedings not inconsistent herewith.

BOYER, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

SMITH, J., concurs and dissents in part.

SMITH, J.,

concurring in part and dissenting in part.

I agree to the relief granted Killearn Homes Association, Inc. Otherwise I dissent, and would affirm the trial court.

I think the estoppel argument is vastly overblown by the majority opinion. When an agreement was finally struck by the parties concerning the cost of street lights, in March 1970, the Talquin Electric alternative had long since been abandoned by Kill-earn Properties, Inc. The 1964 agreement simply provided that “Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future.”

Even if the 1970 contract had been one between private parties, and the City had been capable and desirous of contracting in a favorably discriminatory way toward KPI, at the expense of its other customers and taxpayers, the 1970 contract was for an indefinite period but not perpetual. It would therefore have been terminable within a reasonable time, upon proper notice given. Florida-Georgia Chemical Co., Inc. v. National Laboratories, Inc., 153 So.2d 752 (Fla. 1st DCA 1963); Sound City, Inc. v. Kessler, 316 So.2d 315 (Fla. 1st DCA 1975). By enforcing the agreement to the date of termination by the City, April 20, 1974, and requiring the return of payments extracted from 1970 to 1974, the trial court gave KPI the benefit of the agreement during the period of its existence. KPI is entitled to no more.

After the trial court entered its judgment in this case, relying on Southern Gulf Utilities, Inc. v. City of North Miami Beach, 323 So.2d 669 (Fla. 3d DCA 1975), the Supreme Court held that that decision was correct in recognizing the city’s power to change its rates or charges notwithstanding a prior contract, but that the District Court of Appeal erred in holding that the city could not “change the contractual rate by ordinance without a showing that the new rate was reasonable.” City of North Miami Beach v. Southern Gulf Utilities, Inc., 339 So.2d 173 (Fla.1976). The Court held that the burden of pleading and proving the unreasonableness of new rates and charges was on the party contesting them. Thus both in that case and in this one there was no pleaded issue of whether the new rates and charges were reasonable. In North Miami Beach, the Supreme Court fixed responsibility for that omission on the private contractor, and sustained the city’s power to charge presumptively reasonable rates notwithstanding a prior agreement. In this case, by contrast, the majority have apparently held that, as a result of the City not demonstrating the reasonableness of its new charges for electric lights, it must forever provide them to KPI’s development at the contract rate. The effect, presumably, is to assess the City’s other electrical customers for the cost of the preferential treatment of KPI customers.

I think this case is squarely controlled by the Supreme Court’s decision in North Miami Beach. See also City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 So. 631 (1903). The trial court’s judgment is technically incorrect in its declaration that “if [the City] can show that the change sought by it is reasonable, then it has the right to renegotiate the terms thereof.” But that may be excised as surplusage, and the judgment should be affirmed.

      . The record discloses that at that time Killearn Homes Association, Inc. was totally controlled by Killearn.

      . The agreement was also attested by the City. Auditor and Clerk and was approved by the Assistant City Attorney; both of whom also signed it.

      . Affirmed in part and quashed in part upon certiorari being granted by the Supreme Court. See City of North Miami Beach v. So. Gulf Utilities, Inc., 339 So.2d 173 (Fla.1976). See also Southern Gulf Utilities, Inc. v. City of North Miami Beach, 340 So.2d 983 (Fla. 3rd DCA 1977).

      . Ibid.

      . In that regard the street lights are not different from the utility poles, wires, transformers, etc., which the City impliedly agreed to furnish, without extra charge, in contemplation of distributing and selling energy to the residents of the subdivision.

      . Nor is burden of proof as to reasonableness a primary issue here. (See City of North Miami Beach v. Southern Gulf Utilities, Inc., supra.) The learned trial judge did, however, obliquely address that point, incorrectly placing the initial burden on the City.


text:
    William MOORE, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. KK-206.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1979.
    William Moore, in pro per.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant filed a petition for a writ of habeas corpus based on an allegation that he was deprived of due process of law in disciplinary proceedings. The trial court denied his petition without a hearing. We reverse.

The petition states specific allegations regarding the disciplinary proceedings which, if true, would establish that the Department of Corrections failed to comply with its own rules and with the procedural requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Accordingly, we reverse and remand for a hearing to the adequacy of the disciplinary proceedings.

Reversed and Remanded.

MILLS, Acting C. J., and SMITH and MELVIN, JJ., concur.


text:
    SUN BANK OF OCALA, a duly chartered bank located and doing business in Ocala, Florida, Appellant, v. STATE of Florida, DEPARTMENT OF BANKING & FINANCE, Gerald A. Lewis, as Comptroller of the State of Florida and Head of the Department, Milton L. Copeland, et al., as organizers and proposed directors of the Citizens First Bank of Ocala, Florida Department of Administration, Division of Administrative Hearings, and G. Steven Pfeiffer, Hearing Officer, Appellees.
    No. II-403.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1979.
    Willard Ayres, Ocala, Joseph C. Jacobs and J. Lawrence Johnston, Tallahassee, for appellant.
    S. Craig Kiser, Asst. Gen. Counsel, Tallahassee, Randolph C. Tucker, Jr., Ocala, C. Gary Williams, Tallahassee, G. Steven Pfeiffer, Quincy and Kenneth G. Oer-tel. Tallahassee, for appellees.
   PER CURIAM.

This cause is before us on appeal from orders denying appellant’s motion to intervene in proceedings on the application of appellee Citizens First Bank of Ocala [Citizens] under Florida Statutes Chapter 659 for a bank charter, and orders entered subsequent thereto. The question presented is whether lack of formal notice and service on appellant Sun Bank [Sun] vitiates the proceedings leading to the approval of Citizens’ application. We hold that Sun was not a party, that service on Sun was not required, and further, that actual knowledge of principals of Sun Bank of the proceedings for many months prior to the attempt to intervene, forecloses Sun’s rights in this regard.

Sun was served as a “substantially affected party” with notice of the public hearing held pursuant to Rule 3-3.42, F.A.C., Supp. # 70 at 237. Representatives of Sun attended and participated in that public hearing. As a substantially affected party, Sun was entitled, and had ample opportunity, to file a protest to Citizens’ application, but failed to do so and did not become a party as defined under Florida Statute § 120.-52(1).

Accordingly, the order below is AFFIRMED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.

      . Compare, Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla.1st DCA 1977).


text:
    TARPON SPRINGS GENERAL HOSPITAL, Appellant, v. OFFICE OF COMMUNITY MEDICAL FACILITIES, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. JJ-296.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1979.
    Rehearing Denied March 2, 1979.
    Gayle Smith, Swedmark, of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    George L. Waas, Tallahassee, for appel-lee.
   PER CURIAM.

The hearing officer’s order, adopted as the final order of the Department of Health and Rehabilitative Services (HRS), recommended appellant be denied a certificate of need to expand its facilities in a proposed $6.6 million expenditure. The hearing officer agreed with earlier recommendations of the Florida Gulf Health Systems Agency that the proposed bed expansion was unnecessary, that the costs of the project would increase medical costs to patients and that less expensive alternatives were available. See § 381.494(5)(e), Fla.Stat. (1977).

Appellant contends that the denial was based, in part, on HRS’s definition of “service area” contained in its state medical facilities plan. See § 381.494(6)(c). That definition is based on county lines, and appellant points out that, although it is located within Pinellas County, currently over-, bedded according to the state plan, it is within three miles of Pasco County, which is underbedded according to the state plan. Appellant argues the definition is arbitrary and is a rule never promulgated under Ch. 120.

We do not reach appellant’s contentions because the record shows that both the local health systems agency and HRS analyzed the needs of Pasco County before denying appellant’s certificate. The final order and the recommendation of the local agency noted that Pasco County had a projected deficit in 1982 of 54 beds, but that two other hospitals in Pasco County were accessible to patients within appellant’s service area.

We also disagree with appellant’s argument that the order is not based on competent, substantial evidence. See Bolinger v. Division of Retirement, 335 So.2d 568 (Fla. 1st DCA 1976).

AFFIRMED.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: PER CURIAM. SMITH, J.,

text:
    STATE of Florida, Appellant, v. I. B., Jr. and S. D. M., children, Appellees.
    No. JJ-126.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1979.
    Rehearing Denied Feb. 1, 1979.
    Robert L. Shevin, Atty. Gen. and Michael H. Davidson, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellees.
   PER CURIAM.

The State seeks review of an order releasing juveniles from custody following a detention hearing. Two juveniles were taken into custody for alleged delinquent acts. Section 39.03(l)(b), Florida Statutes (1977). Requests for detention were filed alleging that continued detention was required to protect the person or property of others or the child and to secure the child’s presence at the next hearing. Section 39.03(3)(c), Florida Statutes (1977). A detention hearing was held pursuant to Section 39.03(7)(a), Florida Statutes (1977) and Fla.R.Juv.P. 8.050. The court ordered the children released from detention.

We find no authority for review of this order by the State. Fla.App. Rule 4.2 (1962). The State submits that the challenged order may be reviewed on certiorari. See State v. Smith, 260 So.2d 489 (Fla.1972). We treat the notice of appeal as a petition for writ of certiorari.

The State contends the juvenile court departed from the essential requirements of law by ruling that hearsay evidence was inadmissible at the detention hearing. Fla.R.Juv.P. 8.050(f) provides the court should determine at the detention hearing the need for detention or shelter care and the existence of probable cause to believe the child is delinquent, dependent or ungovernable. Fla.R.Juv.P. 8.050(f)(1) provides that in making the determination of the need for detention or shelter care, “ . . .in addition to the sworn testimony of available witnesses all relevant and material evidence helpful in determining the specific issue, including oral and written reports, may be relied upon to the extent of its probative value, even though it would not be competent at an adjudicatory hearing.” Fla.R.Juv.P. 8.050(f)(2) provides that in determining the existence of probable cause, “ . . . [t]he court shall apply the standard of proof necessary for an arrest warrant and its finding may be based upon a sworn complaint, affidavit, deposition under oath, or, if necessary, upon testimony under oath properly recorded.” Thus, Fla.R.Juv.P. 8.050(f) provides that hearsay evidence may be admitted and may be relied upon to the extent of its probative value.

The record reveals that at the hearing the assistant public defender objected, saying: “Your honor, that would be hearsay, I would object to that statement.”

The following colloquy between the learned trial judge and the assistant state attorney then ensued:

“THE COURT: Just a minute. The man is objecting to any hearsay testimony.
‡ % s(s sjc * s|c
“MR. BURNETTE: It’s for purposes of probable cause, your honor.
“THE COURT: Look, I’m tired of your telling me this is preliminary matters for probable cause. There are rules that we go by, and hearsay is one of them. Now if you can’t prove the case, dismiss it. “Do you understand? Don’t you testify to anything that somebody else told you. * * *

Thus, it clearly appears that the learned trial judge misconstrued the rules and unequivocally ruled that no hearsay is admissible. In so doing he departed from the essential requirements of law.

The Petition for Certiorari is granted and this case is remanded for further proceedings not inconsistent herewith.

Petition for rehearing, if filed, shall be filed within 8 days from the date hereof.

IT IS SO ORDERED.

BOYER, Acting C. J., and BOOTH, J., concur.

SMITH, J., dissents.

SMITH, J.,

dissenting.

In my opinion the court has no jurisdiction. The state’s appeal is unauthorized. Resort to common law certiorari is unauthorized by State v. Smith, 260 So.2d 489 (Fla.1972), which did not review evidentiary rulings but rather an order requiring witnesses to be called by the state at trial to be examined for visual acuity by a doctor, which was said to violate “the right of an individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 260 So.2d at 491. The court’s writ of certiorari leaves matters below precisely where they were as a result of the juvenile judge’s order: the state was then and is now authorized to proceed against the children as delinquents. The court’s writ cannot roll back the months to January 18, 1978, when this detention hearing was held; and it cannot resurrect the circumstances that may then have existed to detain the children for the protection of them or the property of others, or to secure their attendance at an adjudication hearing. The court’s writ is therefore futile except as a lecture, which is not the purpose of common law certiorari. I would dismiss the appeal.

      . Review by the child of an order finding detention is required is authorized by Section 39.03 (7)(a), Florida Statutes (1977).


author: McCORD, Chief Judge.

text:
    Gus SPERANZO, Appellant, v. William C. JONES, Judge, County Court, Appellee.
    No. HH-1.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1979.
    Paul Shimek, Jr., of Shimek & Sutherland, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

This is an appeal from an order of the Circuit Court of Escambia County denying appellant’s suggestion for writ of prohibition directed to Honorable William C. Jones, County Judge of Escambia County. We affirm.

Appellant was arrested for three misdemeanor traffic violations on February 20, 1977. Trial was set for April 11. Thereafter by agreement of the parties and the trial judge, a two-day extension of the 90-day speedy trial period was granted, and the trial was reset for May 23. Thereafter, at the instance of appellant (defendant below), appellant and the state entered into a stipulation which stated that appellant, by his counsel, wished to stipulate for a continuance and waive his right to speedy trial until such time as his eligibility for pretrial intervention could be determined. The stipulation then stated:

“Subject to Court approval, the parties stipulate to a continuance of the trial presently scheduled for May 23, 1977. The Defendant specifically waives his right to a speedy trial until such time as his eligibility for pretrial intervention has been determined. As soon as the parties are informed as to the eligibility of the Defendant for pretrial intervention, the undersigned will advise the Court.” (Emphasis supplied.)

Thereafter, by his letter of May 4, the assistant state attorney wrote a letter to appellant’s counsel stating as follows:

“As I told you during our phone conversation of May 3, Judge Jones is disposed to grant your motion for a continuance, but is not disposed to sign the order granting the continuance. The judge will sign an order if a new order is prepared which omits any reference to the now-defunct misdemeanor pre-trial intervention program.
I am enclosing with this letter a carbon copy of the order you submitted to Judge Jones. I believe the order would be acceptable to the judge if you would delete Paragraph 4 and amend Paragraph 3 to include a blank space where the new trial date could be inserted. The Judge will probably want to re-set the trial for the June docket, during the week of June 20.”

Subsequently, the trial court entered an order on May 10 granting appellant’s motion for continuance without any reference to the misdemeanor pretrial intervention program and stated in the order:

“This cause will be rescheduled for trial in a timely manner consistent with the Court’s calendar and counsel will be advised.”

Thereafter, on May 17, appellant’s attorney wrote the trial judge advising that he had learned that appellant was not eligible for pretrial intervention and that since the stipulation required that he advise the court, he was doing so by that communication. A copy was sent to the assistant state attorney. Thereafter, on July 6, appellant filed a motion for discharge under the provisions of Fla.R.Crim.P. 3.191(d)(2) contending that the time had expired within which appellant could be tried under the rule. The trial court denied the motion, and appellant sought writ of prohibition in the circuit court. The writ was denied, and this appeal was taken as aforesaid.

Appellant, relying upon Johns v. State, 340 So.2d 528 (Fla. 2 DCA 1976), contends that at the time he wrote his letter to the trial judge advising that he was not eligible for the pretrial intervention program, the clock began to run again on the original 90-day speedy trial period, and the time ran out before he moved for discharge. The facts in Johns, however, though parallel up to a point, vary in a material degree from those in the case sub judice. There, as here, the defendant waived his right to a speedy trial until such time as his eligibility for pretrial intervention had been determined. The Second District Court of Appeal ruled that, “The time meter then took up where it left off,” when defendant’s eligibility was determined adversely. The court’s opinion does not provide us with the wording of the court’s continuance order, but we presume that the court there approved the stipulation and based the continuance thereon. Here such is not the case. Here the court agreed to grant appellant a continuance but without any reference to the defunct misdemeanor pretrial intervention program. The order granting appellant’s motion for continuance stated that the case would be rescheduled for trial in a timely manner consistent with the court’s calendar.

The circuit court, in denying writ of prohibition, correctly applied the law of Negron v. State, 306 So.2d 104 (Fla.1974). As we interpret that opinion, when an open-ended continuance is granted to a defendant and the continuance is attributable to the defendant and is not excused, the meter on his speedy trial time starts anew and runs for a reasonable time but not more than 90 days. Here, the order granting continuance was entered on May 10, and appellant’s motion for discharge was filed on July 6 — 33 days before the speedy trial time expired. The suggestion for writ of prohibition was filed July 26 — 14 days before the speedy trial time expired.

Petition for rehearing, if filed, shall be filed within 8 days from the date hereof.

AFFIRMED.

BOYER, J., and MASON, ERNEST E., Associate Judge, concur.

      . Fla.R.Crim.P. 3.191(d)(3)


text:
    STATE of Louisiana v. Wildred BATISTE.
    No. 63506.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Wildred Batiste applying for supervisory writ. Parish of St. Martin.

Writ denied. Relator does not state a cause for which relief can be granted.


text:
    STATE of Louisiana v. Ronald L. BONNET.
    No. 63696.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana applying for remedial writ. Parish of Jefferson.

Writ denied.


author: LEMMON, Judge,

text:
    Delories COTAYA, Wife of/and Noel T. Cotaya v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY and Melvin Hoerner.
    No. 9532.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    William L. Dehner, Harvey, for plaintiff-appellant.
    Harry S. Hardin, III, New Orleans, for defendant-appellee.
   ON MOTION TO DISMISS

This matter is before us on a motion to dismiss the appeal, initially raised by this Court and reurged by appellee by a memorandum in support of the Court’s motion:

On November 23, 1977 the trial court sustained an exception of no cause of action. Under Code of Civil Procedure Articles 1974 and 2087 appellants could have perfected a devolutive appeal by January 31, 1978. A motion for a devolutive appeal was signed on December 15, 1977. No appeal bond, however, was ever filed. On February 15, 1978 the appeal order was amended so as to eliminate the appeal bond, but of course this date was two weeks after the last day to perfect the appeal.

Under these circumstances, we have no choice but to dismiss the appeal. During the sixty days allowed to perfect the appeal, the appellants failed to post the bond then required by Article 2087 of the Code of Civil Procedure, nor did they pay the estimated costs. Cf. Bacmonila Garden Apartment, Inc. v. Williams, 355 So.2d 288 (La.App. 4th Cir. 1978). (Estimated costs in this case were not paid until March 10, 1978.)

Appellants urge us to interpret Act 176 of 1977 amending Article 2124 of the Code of Civil Procedure to eliminate security for a devolutive appeal, to have the same effect as though the order for a devolutive appeal were signed after January 1, 1978 but before January 31, 1978, thus avoiding a claim of denial of equal protection.

This is simply not a case which gives rise to a claim of equal protection, as all parties who are similarly situated (where order of appeal granted before January 1, 1978 and time for appeal expires after that date) are being treated the same.

As far as the interpretation of Article 2124, as amended, is concerned, the legislature has made its meaning very clear when it provided in connection with the amendment the following:

“Section 4. The effective date of this Act is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof." (Emphasis supplied) Acts 1977, No. 176, § 4.

This language is clear and permits of no other interpretation.

Accordingly, the appeal is dismissed.

LEMMON, Judge,

concurs and assigns reasons.

My initial impression was that Act 176 of 1977 by its terms did not relieve appellant from furnishing security, but the spirit of the act did. However, the rationale underlying the amendment of C.C.P. art. 2124 was that security was that security was no longer necessary for devolutive appeals because C.C.P. art 2126 (as amended in 1976) required the appellant to pay the estimated costs of appeal within 20 days of the appeal. In this case the appellant, besides not furnishing security timely, did not pay the estimated costs within the required time, and his appeal is not saved by either the terms or the spirit of the 1977 act.

      . Since the function of security is to secure the payment of costs, and the 1976 amendment to C.C.P. art. 2126 required payment of costs within 20 days of the appeal, the appellant was required both to pay and to furnish security for payment of the same costs. Act 176 of 1977 eliminated the requirement of furnishing security.


author: PRICE, Judge.

text:
    J. C. BOYER, Plaintiff-Appellant, v. Joe E. JOHNSON et al., Defendant-Appellee.
    No. 13333.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Willie H. Barfoot, West Monroe, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This is an action for damages for the wrongful death of plaintiff’s fifteen-year-old son. This court previously affirmed the trial court judgment rejecting plaintiff’s demands. Boyer v. Johnson, 350 So.2d 961 (La.App.2d Cir. 1977). The Louisiana Supreme Court granted certiorari, 353 So.2d 1038 (La.1978), and after reversing the judgment of this court and the trial court, remanded the case with instructions for us to assess damages and render judgment against defendant. 360 So.2d 1164 (La.1978).

Plaintiff’s son was killed on December 2, 1968, and would have been sixteen years old on December 26. Plaintiff testified he was divorced from the boy’s mother when the child was approximately eight years old. Both plaintiff and the child’s mother had remarried and the child remained in the custody of the mother in Bastrop until approximately two months prior to his death. At that time the boy stayed with an older married sister in Monroe.

The evidence shows the plaintiff who lived in Monroe never visited his son and made no contributions to his support. The boy did occasionally see plaintiff when he was visiting relatives in Monroe. There is no evidence to corroborate plaintiff’s testimony that he had a close relationship with his son.

Considering that the accident happened in 1968, which should be the time frame for fixing the amount due plaintiff, and the lack of proof of a close relationship between plaintiff and his son, we find an award of $5,000 is adequate to compensate plaintiff for the damages suffered by him from his son’s wrongful death. Plaintiff is entitled to legal interest at the rate of 5% per annum, which is the rate in effect at the time of judicial demand. Winzer v. Lewis, 251 So.2d 650 (La.App.2d Cir. 1971).

It is therefore ordered that there be judgment in favor of plaintiff, J. C. Boyer, and against defendant, Joe E. Johnson, in the sum of $5,000, together with legal interest at the rate of 5% per annum thereon from date of judicial demand until paid. Costs of these proceedings including this appeal are assessed to defendant.